Alberto Bellan - The AGCOM Regulation in Italy: Nessun dorma

The AGCOM Regulation in Italy: Nessun dorma

#happykat #ddaonline

London, 1 April 2014

@albertobellan

copyright + enforcement = happiness?

@albertobellan #happykat #ddaonline

We tell emotions, interact with people, and create contents Today the web allows creativity to grow up, but someone obstacles its development

by exploiting unlawful contents Get informed, get fun and share experiences with lawful digital works, you will allow

culture to keep flourishing The Regulation on Online Copyright is available on agcom.it.

Digital works are a value, for all. h"ps://www.youtube.com/watch?v=DeblW6o0Eso

In the beginning, there was safe harbour

(2) This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.

(3) This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.

access and caching P Articles 12 and 13, E-Commerce Directive

hosting P Article 14, E-Commerce Directive


Meet the administrative authority

AGCom is the Italian Communication Authority, a public, independent authority having regulatory and supervision powers over telecommunication issues. On its own motion [ie, without a specific parliament’s mandate, which really surprised Merpel], AGCom conceived a regulation on online copyright enforcement (allegato A to the Delibera n. 680/13/CONS del 12 dicembre 2013). The first draft was released in Summer 2013 for public consultation among stakeholders. Also, it was notified to the EU Commission. In December 2013, AGCom received the EU Commission’s response letter and declared the public consultation closed. The Regulation came into force yesterday.


AGCom Regulation in a nutshell

AGCom’s orders target access and hosting providers

only, NOT final users

AGCom’s orders, AGCom’s huge economic sanctions in

case of non compliance

Administrative NTD procedure managed by AGCom,

independent from “private” NTD

Only copyright and related rights under Italian Copyright Law (“ICL”), NOT trade marks or

other IPRs.

It’s online and free. @albertobellan #happykat #ddaonline

Protection of “digital works”

“a work, or parts thereof, with audio, audiovisual, photographic, videoludic, editorial and literary nature, including the applicaEve programs and the computer

operaEng systems protected under ICL”

(copyright + related rights)

Article 1(p) of the Regulation


Standing up for your copyrights

“A legiEmate subject

who considers that a digital work is

made available

on an internet page in violaEon of ICL is enEtled to file a takedown request to the Authority”

Article 6(1) of the Regulation

right holders licensees, collective societies

? @albertobellan #happykat #ddaonline

Start of the preliminary phase

uploader

webpage/website manager

ISPs

AGCom performs a first assessment on the notice, then it issues a first communication to

(if reachable)

uploaders and those who manage the website or the webpage where the contested content is made available

can take part to the proceedure but cannot be targeted by AGCom’s orders or fines, which are exclusively directed

towards hosting and access providers.

Article 7 of the Regulation


hosting?

Website manager

/ hosting

Webpage manager

Uploader @albertobellan #happykat #ddaonline

End of the preliminary phase

Dear Sir, !!Please see the attatched notice of infringement.!!Would you be so kind to remove the infringing content spontaneously? !!If not, please tell us why by filing a defensive brief.

The end Judging panel

Spontaneus take down No reply Defensive

brief

@albertobellan #happykat

Judging panel’s orders

After examining the case, the judging panel my issue the following orders:

selective takedown

Access may be restored by proving to have removed the

contested contents

disable access to the website

(massive infringement)

Italian access providers ordered to disable access

to the website

Hosting provider located in Italy

Hosting provider located abroad




Ruthless financial sanctions

Hosting and access providers shall comply with AGCom’s orders within 3 working days from the service thereof, otherwise they

may be fined between approx. EUR 10,000 and 258,000.

Possible fines are due for non compliance with AGCom’s orders. They go to the Italian State. There is no assessment on ISPs’ liability for copyright infringement.



2 procedures: fast and faster

notice

notice

7 WD

start

5 WD

removal, reply, judging panel

3 WD

start

3 WD

removal, reply, judging panel

w/i 35 WD from noEce

order

w/i 12 WD from noEce

order


Abridged procedure in case of massive infringement


Court proceedings and AGCom procedures

AGCom’s orders and fines may be appealed to the Italian Administrative Court (TAR).

Court proceedings and AGCom procedure are alternative. Court actions have precedence over AGCom’s procedures. AGCom procedure is prevented when a cout proceedings is pending (article 6(3)). It is suspended if “the claimant” brings proceedings before the Court (article 7(7)).



Similar procedure for copyright protection on traditional media

Linear and non-linear services (Articles 10 – 14 of the Regulation)


+ = ?@albertobellan #happykat #ddaonline

Fastissimo copyright enforcement, in the even faster internet.

Right to be heard in principle guaranteed.

Detailed claims, vs active provider theory widely adopted by Italian case law.

Courts’ backlog likely reduced.


Administrative fines blatantly disproportionate.

Right of defence safeguarded in the faster procedure?

Some parts are unclear and arbitrary?

Blocking of foreign websites for 1 content. Really? Really?!?


What about baby startups?


The AGCom regulation and the reality

[email protected] @albertobellan

The Regulation’s website here.

The Regulation’s tale on the IPKat here.

Unofficial English translation here (courtesy of Studio Portolano)

Page to file notice here.