The re-posting of this analysis is part of a cross-posting collaboration with MediaLaws: Law and Policy of the Media in a Comparative Perspective.

Last Thursday the Italian Communication Authority (“AGCOM”) has issued a new draft regulation entitled “Draft regulation on copyright on the electronic communication networks and implementing measures pursuant to Legislative Decree of April 9, 2003 no. 70” (Annex A to the AGCOM decision no. 452/13/CONS of July 25, 2013) (“Regulation”).

Among other provisions specifically focused on online copyright enforcement (here is a first analysis of such new rules related to internet ecosystem), the Regulation provides for a new administrative procedure before the AGCOM in case of copyright infringements carried out by Audiovisual Media Services Providers (“MSP”).

The AGCOM launched a 60-day public consultation to collect stakeholder comments on each article of the Regulation and to allow stakeholders to propose specific amendments to the Regulation itself.  Afterwards AGCOM will evaluate the comments received and it will decide whether or not to embrace them in the context of the final regulation.  According to Article no. 19 of the Regulation will entry into force on next February 3, 2014.

1. The provisions focused on Audiovisual Media Services

The 19 articles regulation is divided into five chapters. The forth chapter entitled “Provisions on the Protection of Copyright on the Media Services” (articles 11-15) provides for a new administrative procedure before AGCOM that can be followed to obtain the stoppage of the broadcasting on Audiovisual Media Services of works which infringe copyright or allied rights.

According to article 12 of the Regulation when copyright or an allied right is infringed by means of a linear or an on-demand audiovisual media service or a program is broadcasted in breach of the license agreement (even with reference to the timescale of the broadcasting) the right holders might file a complaint before AGCOM (using a specific form provided by the same authority) requiring to order the MSP to stop the broadcasting of the relevant program.

Using the complaint-form rights holders shall provide the details of the alleged infringement (i.e. documentation which shows the ownership of the rights on the program, copy of the program, brief description of the alleged infringement, contact details of the relevant Audiovisual Media Service Provider etc.).

Within 10 days starting from the receipt of the complaint AGCOM’s direction for media services might decide to:

1) dismiss the case when:

• the right holder has not used the AGCOM compliant form or failed to provide key information on the alleged infringement of its right;
• the complaint is related to a subject matter which is out of the scope of the Regulation;
• the complaint seems manifestly groundless to AGCOM; or

2) start a formal investigation on the case by sending a notice to the MSP informing him on the details of the case and the outcomes of the preliminary investigations carried out by AGCOM competent direction.

The MSP might file a counter-complaint before AGCOM explaining its defensive arguments within 7 days starting from the receipt of the AGCOM notice.

In 20 days starting from the sending of the notice the AGCOM’s direction ends the investigation and propose to the AGCOM board for services and products the adoption of the appropriate measures towards the relevant MSP.  During the investigations AGCOM’s direction might require to third parties the disclosure of information or documents which are relevant for the case. Such parties shall provide AGCOM’s direction with the requested information or documents within 5 days starting from the request.

The AGCOM’s board within the following 40 days shall issue its decision on the case.

The board could dismiss the case when the investigations revealed the groundlessness of the complaint or it might adopt the following measures:

• a warning letter to the linear MSP requiring the stoppage of the broadcasting of the relevant program which infringes the copyright of the right holder;
• a stoppage order towards the on demand MSP requiring to remove the relevant program form the ones made available to their users.

Even if it is not expressly recalled within the Regulation, according to Article 1 of the Law no. 249/1997 in case of non-compliance with the AGCOM’s decisions, AGCOM might issue fines towards the involved MSP ranging  from EUR10,000 to EUR250,000.

Finally, article 15 of the Regulation provides with a specific procedure in connection with the infringement carried out by the satellite providers which are under the Italian jurisdiction or which are not subject to the jurisdiction of any European member State.

2. Conclusive remarks

Generally speaking the provisions related to MSPs seem more balanced and in line with the AGCOM field of competence on copyright protection (as depicted by Article 32-bis of the Italian Code on Audiovisual media and radio services) as compared with the ones proposed in connection with the online copyright enforcement.

The public consultation launched by AGCOM will be helpful to collect the opinions of the stakeholders on the proposed regulation and hopefully to refine the above outlined provisions that will provide right holders with an effective and fast tool to ascertain the infringement of their rights and then collect the relevant damages by means of actions to be started before the competent courts.