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Alberto Bellan - The AGCOM Regulation in Italy: Nessun dorma


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Alberto Bellan - The AGCOM Regulation in Italy: Nessun dorma

  1. 1. The AGCOM Regulation in Italy: Nessun dorma #happykat #ddaonline London, 1 April 2014 @albertobellan copyright + enforcement = happiness?
  2. 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 Digital works are a value, for all. h"ps://  
  3. 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. 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. 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. 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. 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. 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?
  9. 9. Website manager / hosting Webpage manager Uploader @albertobellan #happykat #ddaonline
  10. 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. 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. 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. 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. 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. 15. Similar procedure for copyright protection on traditional media Linear and non-linear services (Articles 10 – 14 of the Regulation) @albertobellan #happykat #ddaonline
  16. 16. + = ? @albertobellan #happykat #ddaonline
  17. 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. 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. 19. What about baby startups? @albertobellan #happykat #ddaonline The AGCom regulation and the reality
  20. 20. @albertobellan The Regulation’s website here. The Regulation’s tale on the IPKat here. Unofficial English translation here (courtesy of Studio Portolano) Page to file notice here.