Draft regulations on the protection of copyright on the Internet and media also providing a notice and take down procedure for potential breaches have been published by the Italian communications authority (the AGCOM) and are open now to a 60 days consultation, but raise some questions and concerns.
The regulations come after a call-to-action for online copyright protection that had been launched to the Parliament by the AGCOM. In absence of a response from the Parliament, the AGCOM decided to proceed on its own and published draft regulations which are aimed at finding a compromise between the need to protect rights’ holders and to avoid any kind of censorship. However, the issue is whether this right balance has been achieved in the draft regulations that exclude from their scope downloaders and file sharing programs. The reason of such exclusion is unclear and the concern is that such exclusion will lead to technological developments aimed at creating programs falling in the exclusion.
The draft regulations make reference to take-down measures provided by Italian decree 70/2003 implementing the EU E-Commerce Directive and prescribe a first informal take-down request by the rights’ holder to the manager of the webpage where the breaching material is available. In absence of any removal action by the manager of the webpage within 2/7 days, the rights’ holder can report the case to the AGCOM whose proceeding shall be terminated within 45 days that are reduced to 10 days in case of major breaches that can be clearly identified based on an initial review of the matter.
Companies managing websites can publish their own self-regulations on the procedure to be followed for the initial notification of copyright breaches but the risk is that different sites will adopt different approaches requiring a different level of detail by rights’ holders, a considerable inconsistency and a potential limitation to the enforcement of copyrights.
On the other hand, companies managing websites might be forced to take down potentially breaching material on the basis of mere allegations by rights’ holders. And this risk is even higher taking into account that if the Internet service provider, the uploader and the company managing of the webpage (i.e. the hosting provider) do not comply with the take-down order from the AGCOM within 3 days (reduced to 1 day in case of major breaches) fines up to € 256,000 are applicable. Also if Internet service providers and entities managing webpages take down some material and then the claim from the person declaring to be the rights’ holder appears to be ungrounded a potential liability towards the uploader might arise.
Internet service providers shall appoint an officer in charge of receiving such notifications and shall set out a detailed procedure for this purpose also because of the very short timeframe for actions to be taken and information to be provided as part of the AGCOM’ proceeding. Also, it appears that in relation to foreign entities the enforcement will take place through the removal of the access to the breaching material by the Internet service provider given the difficulty to enforce the measures (and the sanctions) abroad, but the question is whether this measure would be really effective.
Finally, the regulations provide also a cease and desist procedure for media services which is quite interesting as a similar procedure was not previously provided by the regulations.
The consultation will last for 60 days starting from yesterday and given the relevance of the matter it will certainly attract comments from the entire industry.