Chers amis comparatistes,
Nous publions l'article de Mme Cristina FUCILITTI, rédigé dans le cadre du Congrès des 60 ans de notre association.
On-line copyright infringement in comparative law
In Italy online copyright enforcement is entrusted, by a Regulation of 2013, to the AGCOM (Autorità per le Garanzie nelle Comunicazioni) 1, an indipendent administrative authority, which has been set up in 1997 with different functions. We can note that Italian legislation has been partially influenced by the French legal system.
In fact in 2009 in France it has been created HADOPI (Haute Autorité pour la diffusion des œvres et la protection des droits sur Internet )2, an indipendent administrative authority with the specific task to prevent and impose penalties for the users illegal downloads using peer-to-peer technology. Starting from January 2022 HADOPI was replaced by ARCOM (Autorité de Régulation de la Comunication Audiovisuelle et Numérique )3, which is also an indipendent administrative authority with additional powers compared to HADOPI.
The two main differences between AGCOM and ARCOM are:
AGCOM measures are not addressed to users, but to the services providers. Instead ARCOM measures turn directly to final users (art. 2, AGCOM Regulation).
ARCOM applies the réponse graduée mechanism, that is to say a system aimed to enforce copyright on Internet, initially by sending warnings and, if this fails, by forwarding to the judicial authorities the file revealing facts likely to characterise an infringement. Instead AGCOM applies the notice and takedown mechanism. It is a process operated by services providers in response to AGCOM orders when there is an illegal content on its website or server. Content must be removed by the provider following the notice.
Moreover ARCOM has the authority to publish a real blacklist containing websites that have seriously and repeatedly infringed copyright; while AGCOM, in the event that
1 See the website https://www.agcom.it/tutela-del-diritto-d-autore.
2 See the website https://www.hadopi.fr/.
3 See the website https://www.arcom.fr/larcom.
the IP address subject to blocking following its order, is located outside the European Union, is only obliged, under certain circumstances, to have it added in the Counterfeit and Piracy Watch List compiled annually by the European Commission (Art. 2, Italian Law No 93/2023).
We saw that AGCOM applies the notice and takedown system. It’s possible to note the influence of US legal system under this regard. In fact the same process is established in the Section 512, Title 17, US Code, called “Digital Millennium Copyright Act” (DMCA)4, introduced in 1998.
DMCA contains Safe Harbors rules and the Notice-and-Takedown System, which applies to Internet Services Providers in the cases of online copyright infringement.
We can also remark that similar Safe Harbors rules and Notice-and-Takedown mechanism have been adopted in Italy in legislative decree No. 70/2003, which transposed the European Directive No. 2001/31/CE. Notice-and-Takedown System, as we have seen, has been incorporated directly into the AGCOM Regulation as a procedure applied by the same Authority in the case of online copyright infringement. Rather than Safe Harbors mechanism generally concerns all e-commerce service providers, and is aimed at creating a 'safe harbour', whereby under certain conditions, providers are not held liable for users' online infringements.
The Safe harbour rules apply if providers, accused of copyright infringement, turn to the judicial authority and not to AGCOM. In fact, in Italy protection before the administrative authority is still an alternative way to protection before the judge.
There are some differences that can be pointed out between the Notice and Takedown procedure before AGCOM and that in the US system:
The first is that in Italy the Notice and Takedown procedure involves a public authority, whereas in the US it is left entirely in the hands of private entities, the Internet Services Providers.
4 See the website https://www.copyright.gov/dmca/.
AGCOM’s orders may be addressed to providers of netwk access services, search engine operators and providers of information society services involved in any way in the accessibility of the website or illegal services, thus also to messaging services such as Whatsapp or Signal, which which, on the other hand, are excluded from the US regulation.
In addition to content removal orders, AGCOM can also take other measures against Internet Services Providers, such as so-called Blocking Dynamic Injunctions or precautionary measures, which, however, in the US legal system can only be taken by judges.
Finally, another issue on which it is interesting to dwell is the Art. 102-septies of Italian Legislative Decree No. 177/2021 5, which faithfully transposes Art. 17 of the so- called European Copyright Directive, No. EU/790/2019 6.
This article provides the three cumulative conditions that make it possible not to hold liable Online Content-Sharing Service Providers for online copyright infringements.
Art. 17 states that 7:
“If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:
made best efforts to obtain an authorisation, and
made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for
5 See https://www.gazzettaufficiale.it/atto/serie_generale/caricaDettaglioAtto/originario?atto.dataPubbli cazioneGazzetta=2021-11-27&atto.codiceRedazionale=21G00192&elenco30giorni=false.
6 See https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32019L0790.
7 See EUROPEAN COMMISSION, Communication to the European Parliament and the Council, Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market, 4 June 2021, on website https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021DC0288.
which the rightholders have provided the service providers with the relevant and necessary information; and in any event
acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).”.
It is possible to note at least two issues:
the rule revolves around general clauses, as for instance “high industry standards of professional diligence”. A general clause contains rather vague and indeterminate concepts, leaving it to the judge to determine their content. They are typical of German law, but thanks to European law, they also enter the Italian legal system;
one of the key concepts is the “best efforts clause”. This clause, which is typical of common law systems, in particular the English system, has given rise in Italy to a wide debate on its translation. It has been translated by the expression "massimi sforzi", which would seem to place more emphasis on the quantitative rather than the qualitative aspect and which could, therefore, entail some important issues in the future.
