Romani Decree: Agcom and IP Enforcement in Italy
In the second week of December a wikileaked US diplomatic cable from February 2010 revealed the US ambassador’s scepticism at the motivations behind the Romani Law (Decreto Romani), nominally the Italian implementation of EU Directive 2007/65 on Audiovisual Media Services.
The cable described at some length how the law’s provisions could be exploited to the benefit of the Berlusconi’s media empire. Amongst other matters, the decree promised greater action on copyright, an area in which the Italian government had hitherto been somewhat disinterested. In fact the design of the Romani Law was driven largely by the need to restrict the commercial activities of Sky, the only effective private sector competitor to Mediaset.
From this perspective the legislation is in historical continuity with its predecessor, the Gasparri law, whose purpose was to ensure an undisturbed transition of media power in the shift from the analogue to digital framework. Yesterday’s incumbents – Berlusconi and RAI – would also be tomorrow’s. The Gasparri law was ultimately the target of a complaint procedure by the European Commission begun in 2006.
Just a couple of days after the leak, on December 17th, the Italian communications authority, Agcom (Autorità per le garanzie nelle comunicazioni), under the powers assigned to it by the Romani Law, announced new measures to be used against sites hosting materials that infringe copyright.
What is Agcom?
Agcom was established by the Maccanico law in 1997 as an agency somewhat independent of the government; of its eight members four are selected by the Parliament and the other four by the Senate. The authority is charged with overseeing infrastructure and competition in the communications sector, and even-handedness in broadcasting. Currently it is under pressure from Minister Paolo Romani to punish a program, Anno Zero, presented by Berlusconi critic Michele Santoro, on the grounds of broadcasting “claims of a gratuitous character, derogatory and seriously damaging to the dignity and decorum of eminent political personalities” on several occasions in January, ie allegations against Berlusconi in relation to soliciting child prostitutes aka the Ruby case…
Marketing Enforcement Strategies
Subsequent to Agcom’s announcement of the new measures, the ‘anti-piracy’ organization FAPAV (Federazione Anti-Pirateria Audiovisiva) held an event in Rome in mid-January to present the Italian aspects of a study commissioned on the detrimental effect of copyright infringement on employment in Europe, produced by Tera Consultants under commission by BASCAP and the International Chamber of Commerce.
As usual improbably large figures were thrown around (billions of euros and 22,000 jobs lost!) with no reference made to the provision of the underlying ‘raw data’ by the IFPI (music industry lobby) and FIMI (their Italian satellite) and a marketing company, IPSOS. No discussion of methodology either, perhaps advisedly so, as the Social Sciences Research Council (who are conducting similar investigations) had publicly criticised it when the report was initially published in March 2010. Not that any of the journalists reporting the event seemed to care: as usual they reproduced faithfully what they were told .
FAPAV had invited Nicolas Saydoux, head of French trade group and antipiracy lobby ALPA, to entertain the audience with a fairytale: how a strategy combining 3 strikes legislation and an increased range of legal products on the market had succeeded in reducing piracy levels by 85% – in less than six months!
Obviously FAPAV would like to see similar measures taken against users in Italy but for now they will have to make do with Agcom’S proposals, namely a system whereby copyright owners can complain to sites hosting their materials or linking to other sites which do, and request the material’s removal. Where no action is taken within 48 hours, the complaint is passed to Agcom, who, after examination of the offending material, will demand its removal. In the absence of compliance fines can be imposed.
To deal with sites based outside of Italy, it is proposed having checked that infringing content was available, Agcom could order providers to ban the IP or DNS so as to prevent access. Such an approach is already in use against foreign gambling sites, and notoriously also in place against the Pirate Bay – not that this has stopped many Italians from circumventing these controls on access to TPB.
What is really interesting about all this is that Agcom’s powers would not require any judicial order. There is no judge involved. Attentive readers will be struck by the similarity to the first version of Hadopi in France. Undoubtedly the positive feelings of FAPAV towards this scheme are driven by the same rationale that was behind Hadopi 1: accelerate the process of shutting down the alleged infringer by recourse to administrative rather than judicial mechanisms. Or to put it more simply, eliminate due process.
Amazingly for such a controversial system it is not being created by parliament, but rather through an administrative order on the part of Agcom, under the terms set out by the Romani decree. The proposed order was released in December and is subject to two months ‘public consultation’ prior to being enacted. A campaign has been started by an alliance of organizations including the consumer groups, lawyers, and business. In recent days they have launched a site to coordinate opposition to the measures.
In a separate decision Agcom has also decided that sites with a turnover of more than 100,000 euros per year based on user-generated content will be subjected to the same legislative requirements as TV stations – restrictions on the provision of content to minors, obligations to individuals defamed etc – and are to be treated as having responsibility for the content on their sites.
Most heavily impacted by this is youtube. In 2008 Mediaset initiated a case against youtube/google, demanding 500 million euros in damages of 500 million euros for copyright infringement of Mediaset programs on their video platforms. This resulted in two decisions against Google, in December 2009 and February 2010, regarding liability for hosting parts of the Italian version of Big Brother (Grande Fratello), a franchise owned in Italy by R.T.I.
Agcom’s decision regarding liability for user-generated content may be of significance in determining the eventual outcome, but this will also hinge on clarification of the more general liability of intermediaries in Italian law, currently a source of great confusion.
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