The Italian Communication Authority (AGCOM) issued on 25 July a Draft Regulation aimed at introducing additional measures for the notice and takedown of infringing online content. The Draft Regulation marks AGCOM's third attempt to introduce additional copyright protection measures for the digital world into Italian law and has raised concerns about the ability and authority of AGCOM to regulate this space, as Daniela De Pasquale, Partner at D&P Studio Legale, explains.

25 July, the Autorità per le Garanzie nelle Comunicazioni ('AGCOM'), the Italian regulatory authority for the telecoms sector, issued a new draft regulation on copyright protection on electronic communication networks (the 'Draft Regulation'). The Draft Regulation is now open for public consultation, which will close on 23 September 2013. So consumers, industry representatives, and the relevant associations can submit their comments on each provision of the Draft Regulation by answering a set of questions suggested by AGCOM. The planned date for the Draft Regulation to come into effect, if it is ever enacted, is 3 February 2014 as specified in Article 19 thereof. The Draft Regulation is based on two types of procedures to be activated only by the rights holder (AGCOM could not start proceedings against a possible infringer on its own initiative): the first type of procedure is an ordinary procedure; the second - aimed at punishing severe infringements - is a summary injunctive procedure. The Draft Regulation is aimed at protecting digital works but it also lays down provisions on the protection of copyright on audiovisual media services.

The Draft Regulation provides for a sequence of actions that may end with the adoption of sanctions by AGCOM. The remedies are clearly shaped under the E-Commerce Directive (2000/31) provisions, which under Recital (46) reads that 'in order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level.'

Accordingly the various steps can be summarised as follows:

  • Notice and takedown. The first step of the ordinary procedure is the notice that the rights holder must send to the website owner requesting the removal of the infringing content from the website. This first step does not imply any action by AGCOM.
  • Self-regulatory notice and takedown measures. If the website owner has implemented a selfregulatory code ruling notice and takedown measures and if these rules have been notified to AGCOM, the procedure is managed according to these terms. This sounds like a clear invitation to adopt industry standards and a self-regulatory framework, in the same fashion as abroad. This was the case, for instance, with the Center for Copyright Information of the United States that adopted the Copyright Alert System, a procedure that has been put in place through the initiative of a number of representatives from internet and communications companies. But at present no similar initiatives have been put in place in Italy though a number of internet service providers have their own policy for takedown requests.
  • Starting the procedures. Should the alleged infringing content not be removed from the website within two days (or seven days in the case of self-regulatory notice and takedown procedures) from the notice, the rights holder is entitled to request AGCOM (filing a specific form) to remove the website content. It should be noted that the procedure cannot be initiated or prosecuted before AGCOM if the same parties have initiated proceedings on the same matter before a Court.
  • Immediate request to AGCOM. The timeline mentioned above is not applicable in two specific circumstances: (i) when the self-regulatory notice and takedown procedures have not been implemented; and (ii) when it is impossible to contact the website owner. In these two cases, the right holder may request AGCOM to order the removal of the content. A specific unit of AGCOM is in charge of the assessment of the grounds for the request within 10 days.
  • Start of the proceeding. A communication concerning the start of the proceeding is sent to the right holder, the uploader, the website owner and the ISP. If the owner of the website cannot be found, the ISP will have to provide to AGCOM useful information in order to identify the website owner within 48 hours. Further to this communication, the uploader, the website owner and the ISP have a short timeframe (three days) to comply with the request or to send a reply to AGCOM (except when the case is particularly complex or when the relevant investigations are particularly complex). This measure can prove extremely burdensome for ISPs and has been heavily criticised in respect of the improper balance of interests between different stakeholders.
  • Outcome and sanctions. Within 45 days from the receipt of the notice AGCOM can: i) dismiss the case; ii) order the removal of the infringing content from the website; and iii) order the disabling of access to the website. The order of removing and disabling will be adopted by AGCOM taking into account the seriousness of the infringement as well as the location of the server. This provision will be adapted to the territorial limits of AGCOM, so it is likely that this provision will be better specified after the public consultation.
  • Redirection. In order to spread the culture of legality in the use of digital works, AGCOM can also order the automatic redirection to a page constructed pursuant to the indications of the authority. This provision is very similar to the publication of the decision in the light of the effects.
  • Fines. Fines of up to 250,000.00 EUR are provided in case of failure to enforce the orders to the infringer or the ISP.
  • Summary proceeding. The summary proceeding can be activated when AGCOM evaluates that there is an instance of serious infringement of rights in a digital work on the basis of the first brief knowledge of the facts outlined in the notice.
  • The protection of copyright on audiovisual media services. A specific section of the Draft Regulation is aimed at the protection of copyright on audiovisual media services. If a programme within a schedule or a catalogue infringes copyright or is reproduced without the agreed conditions, the right holder can send an instance to the AGCOM. The latter can decide to dismiss the case or to initiate the proceeding within 10 days from the receipt of the instance. In this last case, the media service provider can send a reply to AGCOM within seven days.When AGCOM finds there is an infringement, it can order the removal of a programme from the schedule or it can order the media service to cease playing the programme.

The Draft Regulation has been received very negatively by both operators of the internet industry and advocates of internet freedom involved in the public consultation. Even the power of AGCOM to issue a regulation on this subject matter has been questioned due to the lack of a specific copyright law provision entrusting AGCOM with authority in this respect.

Certainly, the Draft Regulation has a narrow scope compared to other past drafts that have not been passed and that tried to encompass the 'peer to peer' exchange of files as well. However many believe there is still room for improvements to the latest draft as follows:

  • The accuracy of definitions: most of the definitions provided by the Draft Regulation regarding the subjects requested to comply with the orders are not very clear in their meaning. For example, some of the definitions of 'service provider,' 'webpage owner,' and 'digital works' are not sufficiently detailed and need better coordination with existent legal frameworks;
  • The conditions for the start of proceedings leave a dangerous space for discretionary assessment;
  • Remedies should take into consideration the different nature of recipients (hosting providers, webpage owners, network operators) but such important nuances do not seem to have been caught by the present text; and
  • Doubts have been raised on the effective capability of AGCOM to manage huge quantities of complaints.

Some of these limits could be overcome by means of more sophisticated language following the public consultation, but the question remains as to whether online copyright should be protected only by the law and enforced through a jurisdictional system, as opposed to an administrative system as featured in the Draft Regulation.My view is that, due to the slow pace of civil and criminal justice in Italy, a strong regulation (not affected by the above mentioned limits) could be an effective tool to protecting online copyright, if coupled with self-regulation and good industry practices; however, finding the correct line between the jurisdiction of judges and the authority of AGCOM is not an easy job at all.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.