This week in Italy No. 4 – Some Brief Remarks on the New Copyright Enformcement Regulation Held by the Communications Authority (AGCom)

On March 31 the new Communications Authority (AGCom) regulation on copyright enforcement will come into force.

Despite the critical opinions raised by many stakeholders during the public consultation which took place from late-July to mid-September, concerning especially the fact that AGCom would not be empowered to issue such regulation, the final text was almost identical to its first draft. Several issues seem to be still unsolved.

E-Lex Law firm has prepared a full press release for an overview of the most relevant opinions on the new regulation.

Hereunder the most critical issues.

Right of defense , due process and the contradictory principle

First of all, many commentators have pointed out that the aim of protecting authors’ rights is reached through a summary procedure that does not respect the rights of the defense and to a fair trial.

Yet the Authority , in its press release which announced the approval of the Regulation, has defended its work stating that “the process is characterized by the full respect of contradictory principle”.

However, it is clear that the formal correctness of the measures held by the Regulation could be useless where the subjects involved, though regularly made aware of the proceedings against them, are not in the condition to defend their rights against copyright holders who act before AGCom.

Purposes of the Regulation

The 19 articles of the Regulation show a strong discrepancy between the intentions held by AGCom and the measures approved for their pursuit: in fact, while the Resolution 630/13/CONS states the intention of the authority to pass direct measures, on the one hand , “to encourage the development of legal offers of digital works and public education to the correct use of the same” and, on the other hand, to monitor , detect and stop violations .

Reading the single provisions of the Regulation, this latter purpose seems to be clear. On the contrary, the Regulation only devotes a few synthetic references to the first purpose, and notably article 4 which refers refers to the future activities of the newly established Committee for the development and protection of legal offers of digital works.

Even the composition of this Committee seems not to be accurately regulated: in fact, it is not specified who will head the Committee and what associations and organizations will have the right to delegate its own appointee.

 The protection of copyright: scope

Two aspects are definitely noteworthy. The final wording of Article 2 expressly excludes from the scope of the Regulation “end users who benefit from digital works by downloading or streaming, as well as applications and computer programs which is achieved through the direct sharing between end-users of digital works through electronic communications networks”. This choice has been welcomed within the public consultation and the AGCOM pointed out that this will not impact on the illegality of these conducts that will be sanctioned by ordinary law and procedures.

It is arguable the choice of coining a new category of protected works, namely “digital works”. On this point see the comments of Mr. Giovanni Maria Riccio, partner of e-Lex, in this article for Il Sole 24 Ore.

Terms and notices

Very short deadlines of the proceedings and the alleged incompatibility of these terms with the principle of fair trial are certainly an issue. The entire procedure, in fact, ends in a maximum of 35 working days (12 in the case of summary proceedings ) period within which the AGCom is required to take the penalties provided in the Regulation. Thus, the recipient of a notice of copyright infringement  has only 5 days (3 in case of urgent procedure) in order to present counter-arguments.

If the defense is not sufficient to counteract the reasons of the alleging party, the measure for the protection of copyright may also consist of disabling user access to a website and redirect to a page “drafted as indicated by the authority” (presumably, where violations and sanctions will be reported).

The terms seem to be even more stringent taking into account the fact that the Authority has expressly provided that all the communications must be done solely via email, not necessarily a certified one, thus entrusting the realization of the principle of due process and the right of defense to a technical mean that does not certify the correct transmission of the communications.

Against the sanctions of AGCom, an appeal before the Administrative Courts is allowed.

The future

It is hard to predict what will be the effects due to the entry into force of the Regulation. The Authority included in the final text a clause with which reserves the right to modify the provisions.

Certainly , in the light of the many issues concerning the empowerment of AGCom  raised during the past months, it will be necessary – as strongly stated by Mr. Guido Scorza, another partner of e-Lex, in this video – to contest the new Regulation before the competent courts.