Italian Statute Law regulates ownership and protection of immaterial rights primarily through a specific Copyright Act ii as well as through the Code of Industrial Property Rights.iii
The Copyright Act protects, irrespective of their means or ways of expression, 'intellectual productions' with a distinct creative character, pertaining to the context of literature, music, figurative arts, architecture, theater and cinema (and nowadays also computer programs and data bases).
The Code defines the term of 'Industrial Property' as including "trademarksiv and other distinctive signs, geographical indications, designations of origin, designs and models, inventions, utility models, topographies of semiconductor products, confidential business information and new plant varieties"v and offers legal protection via a registration procedure and subsequent exclusivity rights.
Ever since such rights assigned to owners with respect to their 'immaterial assets' had to suffer serious threats by infringements and acts of piracy and counterfeiting. To enforce protection legal remedies both, of preventive as well as of compensatory nature, are contained in most of the contemporary legal systems.vi
No surprise that in an Internet society with more and more businesses performed online, such infringements have significantly increased in numbers, while seriousness of the offenses has reached much higher levels. Control over activities performed on the Internet and enforcement of existing regulations towards violations occurred in an online environment have become a crucial issue.
Lacking common rules to be applied to the online environment on an international level and on a cross-border basis, we have seen a broad range of national and country specific attempts, meant to react to a booming development. Frustrated by the patent ineffectiveness of traditional legal remedies for preventing piracy and counterfeiting, lawmakers frequently are tempted to involve providers of Internet services as "sheriffs" and to assign them "police functions" with respect to activities conducted in the online world.
Currently in Italy one of the local watchdogs (the Communications Authority – AGCOM),vii is accused of performing such an attempt. The Consolidated Act on Audio-Visual Media Servicesviii provides that: (a) providers of audio-visual media services are held to act in strict compliance with the provisions on copyright protection and on related rights; (b) such compliance has to be granted and made effective through a specific regulation, to be prepared and issued by AGCOM.
Earlier this year – in July 2013 – the Authority has published a draft version of such regulation, seeking for public consultation on its proposed provisions.
Such initiative drew immediate – and huge - criticism among legal experts and interested stakeholders. An intense debate heated up, specifically on the following aspects:
- In presenting an index of the terms and definitions used in the proposed regulation's provisions, the Authority had introduced the concept of "digital works", explained as "works (or part of such works) of acoustic, audio-visual, video-gaming or editorial character, benefitting from copyright protection and diffused on a communication network",
- As to the purposes of the new regulation AGCOM statedix that the provisions were deemed to "govern all functions assigned to the Authority as to copyright protection in electronic communication networks" and therefore to promote the offering of digital works, to favor correct use of such works and to regulate procedures aiming at ascertaining and halting the infringement of copyright and related rights performed on such networks,
- AGCOM then went on to suggestx the following procedural steps for reacting to copyright infringement: any interested subject discovering such infringement with respect to digital works made available on an Internet page, may access the operator/manager of such page with a take-down request; should such initiative result ineffective (or when it's impossible to approach the web page manager/operator), the interested subject may access the Authority with a removal request; AGCOM – when considering the request as correctly filed and not patently groundless – notifies the opening of a formal proceeding to the opponent, the page operator and the uploader, the latter being invited to removing spontaneously the questioned content within three days, or to submitting defense arguments within the same deadline; the Authority then concludes the procedure with a formal decision, eventually ordering providers of Internet services the removal of the infringing content within the three days following its decision and setting fines for potential incompliance (and also notifying a Public Prosecutor about potential criminal conduct).
This AGCOM proposal has drawn strong criticism from:
- Freedom of expression and privacy advocates, arguing that the new provisions would introduce a sort of censorship on user generated content,
- Special UN Rapporteur xi(on the promotion and protection of the right to freedom of opinion and expression) Frank La Rue, who while on visit in Italy, has also voiced his concern about a Regulatory Authority interfering – in total absence of any involvement of the Parliament – with fundamental rights shielded both, by special constitutional guarantees as well as by various international treaties/conventions,
- Members of the Italian House, who feel that the Authority would definitely be exceeding in its competences by trying to regulate copyright protection in general terms and not just in the context of audio-visual media services diffused on electronic communication networks,
- Legal experts, who share the same concern, question the total lack of filtering and of preventive judicial review with respect to take-down requests and measures and feel unhappy about AGCOM's attempt to introduce additional definitions to the traditional categories of intellectual works benefitting from copyright or industrial property protection.
The Authority's public consultation has therefore received a significant number of contributions and suggestions for modifications. It'll be interesting to see how the Authority will deal with this in-put when elaborating and publishing the final text version of the upcoming Regulation.xii
* Felix Hofer is a named and founding partner of the Italian law firm Studio Legale Hofer Lösch Torricelli, in Firenze (50132), via Giambologna 2/rosso; he may be reached through the following contact details: Phone +39.055.5535166 , Fax +39.055.578230 – e-mail: firstname.lastname@example.org (personal) or email@example.com (firm e-mail).
i. Law no. 633 of April 22nd, 1941 for the Protection of Copyright and Neighboring Rights (as integrated and amended over the years).
ii. Legislative Decree no. 30 of February 10th, 2005 (also amended in the following and recently through Legislative Decree no. 131 of August 13th, 2010).
iii. According to Article 7 of the Code registration may be sought for "any sign capable of being represented graphically, in particular words, including personal names, designs, letters, figures, sounds, the shapes of goods or their packaging, the combinations or chromatic shades,... , provided that such signs are capable of distinguishing goods or services of one enterprise from those of other enterprises".
iv. Kindly consider that the English translation of the definition is not an official one, but originates from the author of this news blurb.
v. These remedies generally allow the offended party accessing a court and claiming/obtaining that: infringements in place are stopped on short notice, infringing goods are seized, further violations are prevented by banning the manufacturing and trading performed in violation of exclusivity rights, damages compensation is granted and additional economic sanctions are served for further violations. As to Italy the rules on protection and remedies are to be found in Articles 156, 156-bis, 156-ter, 158, 162-ter, 163 of the 1941 Copyright Act and Articles 131-133 the Industrial Property Code.
vi. "Autorità Garante delle Comunicazioni" = Communication Regulatory Authority or Communication Commissioner.
vii. Legislative Decree no. 177 of July 31st, 2005 on Audio-Visual Media and Broadcasting Services (as amended in 2010), while implementing Directive 2010/10/EU of March 10th, 2010 on "on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)".
viii. So Article 2 of the Regulation's draft text.
ix. See Articles from 6 to 9.
x. An independent expert appointed by the Human Rights Council to examine and report back on a country situation or a specific human rights theme. This position is honorary and the expert is not United Nations staff nor paid for his/her work. The Special Rapporteurs are part of the Special Procedures of the Human Rights Council.
xi. Likely to be ready and out in February 2014.
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