The AGCOM Regulation in Italy: Nessun dorma #happykat #ddaonline London, 1 April 2014 @albertobellan copyright + enforcement = happiness?
Jun 20, 2015
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
@albertobellan #happykat #ddaonline
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.
@albertobellan #happykat #ddaonline
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
@albertobellan #happykat #ddaonline
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
@albertobellan #happykat #ddaonline
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
@albertobellan #happykat #ddaonline
Article 8(3) of the Regulation
Article 8(4) of the Regulation
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.
@albertobellan #happykat #ddaonline
Article 8(7) of the Regulation
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
@albertobellan #happykat #ddaonline
Abridged procedure in case of massive infringement
Article 9 of the Regulation
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)).
@albertobellan #happykat #ddaonline
Article 17 of the Regulation
Similar procedure for copyright protection on traditional media
Linear and non-linear services (Articles 10 – 14 of the Regulation)
@albertobellan #happykat #ddaonline
+ = ?@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.
@albertobellan #happykat #ddaonline
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?!?
@albertobellan #happykat #ddaonline
What about baby startups?
@albertobellan #happykat #ddaonline
The AGCom regulation and the reality
[email protected] @albertobellan
The Regulation’s website here: https://ddaonline.it/
The Regulation’s tale on the IPKat here.
http://ipkitten.blogspot.co.uk/search?q=agcom&max-results=20&by-date=false
Regulation unofficial English translation here (courtesy of Studio Portolano) http://www.portolano.it/wp-content/uploads/2013/12/English-translation-of-the-
IT-Regulation-on-the-copyright.pdf