Wednesday, January 12, 2022
Italian transposition of the Copyright Directive (as defined below) introduces some interesting additions within the free uses regulation, but it might not represent the relevant breakthrough for the press industry that its minor players, as well as the EU legislator, wished for.
On 26 March 2019, the European Parliament approved EU Directive 2019/790 of the European Parliament and of the Council of 17 April 2019, on copyright and related rights in the Digital Single Market (the Copyright Directive), which member states were expected to transpose by June 2021 at the latest. Whilst some member states complied with the deadline, Italy only issued its transposition through Legislative Decree 177/2021 on 12 December 2021 (the Legislative Decree) and amended the existing Law No. 633/1941 on copyright and related rights (the Italian Copyright Law).
In the last two years, large literature has been produced especially in relation to the analysis of the now well-known Articles 15 and 17 of the Copyright Directive. These provisions govern protection of press publications concerning online uses (Article 15 Copyright Directive), and use of protected content by online content-sharing service providers (Article 17 Copyright Directive), repectively. This provision requires member states that online content-sharing services providers provide evidence that they are communicating to the public or making available to them copyright-protected material uploaded by their users. It also establishes an obligation for online content sharing platforms to get authorization from right-holders before they allow users to share the content. It is easy to see why such provisions were so important.
In this contribution, we will be mainly focusing on the Italian transposition of Article 15 Copyright Directive and its peculiarities.
THE ITALIAN TRANSPORTATION CHOICES
As a preliminary remark, Italy transposed Article 15 Copyright Directive through Article 1, paragraphs 1-16, of the Legislative Decree and by introducing Article 43-bis to the Italian Copyright Law. This provision, par. 1, provides publishers of press publications with the exclusive rights of reproduction and of communication to the public in connection with the online use of their publications of a journalistic nature by information society service providers, including companies of media monitoring and press releases. This implies that, from now on, under Italian law, any information society service provider –and in particular media monitoring companies and press releases, also called “news aggregators“–will need to obtain a proper authorization from press publishers in order to legitimately make any online use of a press publication unless such use falls within the scope of specific copyright exceptions set out below.
While Article 43-bis, par. 1, consists of a quite literal transposition of Article 15 Copyright Directive, the Legislative Decree establishes a couple of peculiarities, and:
gives a definition for the controversial expression “very brief extracts” that is used in the Copyright Directive ;
Article 43-bis establishes that “very short extract” of journalistic content means “any portion of such publication which does not dispense with the need to consult the journalistic article in its entirety“. In such respect, it has to be noted that through the Opinion No. AS1788 (the “Opinion“), issued before the entry into force of the Legislative Decree, the Italian Antitrust Authority (“AGCM“) has criticized the above definition for being too vague and suggested more objective parameters such as, for instance, the number of characters used in the article;
introduces the principle that press publishers should receive a “fair” compensation for online use of their journalistic content ;
It’s worth noting, that the fair compensation principle requires that service providers and publishers engage in negotiations regarding the use of the contents as well as its remuneration. The Italian legislator gave a key role in determining fair compensation (see below, point iii). Publishers will need to recognize a portion of the revenue to authors of articles that are subject to online use. Publishers to whom an author has granted or transferred a right through a transfer or licence agreement will be entitled to a portion of the fee. This is normally considered to be payable to the author for any uses of their work subject to any exemption or limitation to that transferred right ;
ascribes to the Italian Regulator and Communication Authority (AGCOM) the task to identify the criteria to be used for determining the above mentioned fair compensation.
AGCOM will likely adopt a regulation that outlines the criteria for determining fair compensation. These include the number of online consultations, the years of activity, and the relevance to the market of the publisher.
In the event that the negotiation process between publishers and information society service provider fails within 30 days from the request to commence negotiations in relation to the amount of compensation and without prejudice to the right to bring an action before the judicial authorities, the Legislative Decree provides that either party may refer to the AGCOM to determine the fair compensation, specifying its economic proposal. Within 60 days from the request of the interested party, the AGCOM shall indicate, on the basis of the criteria established by its mentioned regulation, which of the economic proposals formulated is compliant with the aforesaid criteria or, if it does not consider any of the proposals to be compliant, indicate the amount of the fair compensation. The Italian legislation imposes an obligation for publishers to provide all information necessary for fair compensation calculations. The AGCOM also has a role in this instance, as it is tasked with monitoring publishers’ compliance with the information obligation.
Furthermore, Article 1, paragraphs 6 and 7 of the Legislative Decree implements the exemptions from press publishers’ rights to reproduction and communication to the public contained in Article 15 Copyright Directive by providing that right of reproduction and right of communication to the public shall not be recognized in connection with individual uses, acts of hyperlinking and use of single words or very short extracts of a press publication.
However, it must be noted that the AGCM states that the Copyright Directive’s Italian transposition contains provisions that could hamper competition and give too much power to the government (i.e. AGCOM) in private negotiation. The AGCM states that the Copyright Directive protections should not be used (i) with instruments of a particular invasive nature, (ii) with regulatory interventions that could place unjustified restrictions on the parties’ negotiating autonomy. AGCOM recommended that the collecting societies be given the responsibility of overseeing negotiations, in order to better serve their interests.
Also, AGCM is concerned that the parameters used to define fair compensation for new entrants, and smaller publishers, will likely lead to improper discrimination, favoring incumbent publishers.
Having reported all the above, finally, it shall be mentioned that the Legislative Decree amends the exemptions regulated in the Italian Copyright Law by transposing Articles 3-6 Copyright Directive, into Articles 70-bis – 70-sexies in the Italian Copyright Law, adding some peculiarities to the EU provisions in an effort to adapt the already-existing regulation to a more online-oriented conception of free uses. The Legislative Decree regulates digital summaries, quotations, translations, and adaptations of protected works for teaching purposes.
is performed under the supervision of an educational institution, at its premises or other venues or through a secure electronic environment.
includes indication of title, author and publisher, if available.
However, the exception above does not apply in regards to material that is primarily intended for the educational market and sheet music to the extent that suitable licenses authorizing the teaching activities are easily available.
The Legislative Decree regulates text and data-mining for scientific research. It allows researchers and institutions for cultural heritage protection to reproduce text from protected works in networks or databases. This includes data mining and text mining. The communication of results of research to the public is also allowed. The Legislative Decree allows text and data mining by all types of users, provided that the mining is not restricted to protected works or databases. Hopefully, Article 70-ter of the Italian Copyright Directive provides for quite extensive definitions of “research organizations” and “institutions for the protection of cultural heritage” allowing to properly identify the categories involved.
There are some considerations in the Italian transposition copyright directive.
First, it is not surprising that the AGCOM is acknowledged with a prominent role in copyright-related issues. As a matter of fact, the AGCOM already plays functions of copyright vigilance and inspection in coordination with the main Italian collecting society (Societa Italiana Autori ed Editori–also known as SIAE). By way of example, through the adoption of Resolution No. 680/13/CONS of 12 December 2013, the AGCOM provides supports for the protection of the digital content market by fighting against piracy through means of effective, proportionate and dissuasive enforcement procedures.
The legislator could not choose the public authority that is competent in this matter. It would be up to AGCOM.
Secondly, this transposition of Copyright Directive doesn’t address the problems generally highlighted in relation to the text. It has added some specifications to the text but it doesn’t always provide practical and efficient solutions.
For example, as for the definition of “very short extracts,” on the one hand, the Legislative Decree tried as per the Copyright Directive to define such uncertain expression that arose many doubts, and on the other hand, an opportunity has been missed since it is easy to imagine that such vagueness will create lots of noise. It will be interesting to see the practical implications.
In conclusion such transposition will certainly open very interesting scenarios both in reference to fair compensation criteria to apply as well as for interference of the public power in private negotiations, especially under competition law. The relevant stakeholders will need attention to how this updated framework will be implemented in practice in coming months, particularly with respect to the different implementations that may differ across EU Member States.