After a long consultation process, the Italian Communications Authority (AGCOM) published the long awaited regulations on the protection of copyright on the Internet and media, which among other things provide for a notice and take down procedure for potential copyright breaches (for a wider description see also our Gualtiero Dragotti’s article for the Corriere della Sera).
The regulations make reference to the take-down measures provided by the Italian Decree 70/2003 implementing the EU E-Commerce Directive and set up a proceeding to be initiated only upon request to be made to the AGCOM by the rights’ holder, through a form available on the website of the Authority, also in order to limit the risk of possible abuses.
If within 7 working days from the rights’ holder notification the AGCOM believes that the proceeding can be initiated, it will inform the uploader of the challenged copyright protected material as well as the managers of the challenged webpage and of the website, notifying them on the main elements of the case and giving them the possibility to spontaneously take down the challenged material or submit their defence within 5 working days from the notification.
The AGCOM will issue its decision within 35 working days from the initial rights’ holder report, requesting to prevent or cease the breach if it believes that the complaint is grounded. If the website is hosted in Italy, AGCOM may request the Italian ISPs to perform a “selective” removal of the challenged digital works, and in case of massive breaches to disable the access to the entire site. If the website is hosted abroad, AGCOM may request Italian ISPs providing a mere conduit service to disable the access to such website. So, while for Italian websites the disabling of the access to the site is just an extreme measure, this would be the general rule for foreign websites. This means that foreign websites with a relevant Italian business should be aware of the possible risks, also taking into account that the users trying to access to a disabled website will be redirected to an AGCOM webpage that informs that the access is disabled due to a copyright breach, with obvious reputational consequences.
The timing for the procedure is considerably reduced for major breaches, with an additional burden on website managers that might face the above mentioned sanctions within 12 working days from the filing of the complaint from the rights’ holder.
The regulations focus only on copyright breaches performed by businesses, specifically excluding end-users breaches and peer-to-peer programs. However, as it appears from the above, the obligations for ISPs -including foreign ISPs- could be considerable. In any case there will be few months to put in place an adequate compliance system, since the regulations will come into force only on the 31 March 2014.
As expected, the regulations further ignited the debate on copyright and Internet freedom. A number of commentators raised some concerns about certain parts of the regulations that can be perfected. For instance, some noted that the definitions provided by the regulations do not fully take into account the different types of provider, creating additional headaches for the mere conduit providers; while others more radically challenged the fact that the AGCOM may not have the powers to issue any regulation on this topic, and even in such case it would not be appropriate to have the same subject -i.e. AGCOM- setting up the regulations and then being responsible for managing the whole process.
Regardless of such debate, most welcomed the courage of AGCOM to start addressing certain issues that a number of stakeholders so far conveniently ignored. It would be good if this initiative will then be followed by a concrete effort also from the Parliament.