1. The AGCOM Regulation in Italy:
Nessun dorma
#happykat #ddaonline
London, 1 April 2014
@albertobellan
copyright + enforcement = happiness?
2. @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
3. 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
4. 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
5. 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
6. 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
7. 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
8. 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?
10. 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
11. 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
12. 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
13. 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
14. 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
15. Similar procedure for copyright protection
on traditional media
Linear and non-linear services
(Articles 10 – 14 of the Regulation)
@albertobellan #happykat #ddaonline
17. 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
18. 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
19. What about baby startups?
@albertobellan #happykat #ddaonline
The AGCom regulation and the reality
20. albertobellan@gmail.com
@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
