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.
Sarkozy’s grand plan against the pernicious plague of of p2p users came unstuck last june, when the Constitutional Court struck down the core of the law. Undeterred, his government immediately restarting the legislative process. Given the UMP’s large parliamentary majority, and the umbrage taken by their leadership at the opposition to this law, the process was fast-tracked, and ultimately approved by the National Assembly and Senate, who voted in favour of the new version last tuesday September 22nd. This post will cover developments up to the time of the law’s approval, while the next will detail the new challenge before the Constitutional Court submitted in recent days.
Change of Personnel at the Ministry for Culture
On june 23rd, Christine Albanel was replaced by Frederic Mitterand as Minister for Culture. the latter is the nephew of former president Francois Mitterand and comes from outside the ranks of the UMP. Steering the redrafted Hadopi law is his first assignment. Some critics of the law were initially hopeful that he might be more receptive to their objections, but this hope was misplaced. Christophe Tardieu, the Ministerial aide who saw fit to forward a mail critical of the law by Jermore Bourreau-Guggenheim to his erstwhile employer TF –resulting in him being sacked – was made head of the National Dance Council in August; is that a punishment or a reward? Meanwhile Bourreau-Guggenheim remains unemployed.
Constitutionality by the Back Door?
As described in a previous post, a key constitutional problem with Hadopi 1 was that it assigned power to negate a fundamental right (internet access) to a non-judicial authority, namely the Committee for the Protection of Rights. The purpose of such a system was to create an apparatus capable of issuing hundreds of thousands of warnings and disconnections per year, a volume possible only via an administrative rather than a judicial procedure. Forced to reintroduce judicial authority, the government has elected to use an expedited legal procedure know as the ‘penal order’ (ordonnance penale).
This mechanism is otherwise employed principally for dealing with minor road traffic offenses and in a couple of other areas. It relies on the fact that these are instances where there is little scope to dispute the facts: your car is clocked exceeding the speed limit, you break a red light on camera etc. These cases are dealt with by judges summarily, requiring on average about five minutes per case.
In the case of the alleged copyright infringements under Hadopi 2, it is sufficient that your internet protocol address is flagged transferring proprietary content, and that this is communicated to the Committee for the Protection of Rights. If satisfied by the claim, the judge can then order the suspension of the user’s internet connection for up to a year in the case of copyright violation, or one month where abuse of the line is deemed to derive from negligence (failing to prevent other parties from using the connection for infringement). Under the ‘penal order’ procedure the public prosecutor puts the defendant on notice, but the latter receives no actual hearing, has no legal representation, and the judge is not required to provides grounds for the decision. The judge may also make an order enabling the owners of the copyrighted work to make a damages claim – a facility normally unavailable under the ‘penal order’ and requiring an amendment of the penal procedural code in itself.
Users targeted under this procedure will have 45 days to make a challenge, in which case the charge will be dealt with in court under the adversarial procedure. Should they take this route they expose themselves to a greater range of sanctions. Under the 2005 DADVSI law, copyright infringement is punishable by up to three years imprisonment and 300,000 euros in fines, although in practice these have not been applied. According to the impact study prepared to accompany the law this expedited system aims to deal with 50,000 cases a year and will require 26 judges to be dedicated to its administration. The new legislation also provides for fines, both for ISPs who fail to implement disconnections, and for disconnected users who attempt to revive their access by switching to another provider.
Interestingly, despite the tam-tam of apocalyptic prophecies from the media industry regarding piracy, the most recent European cinema attendance statistics show growth of nearly 4% in the five major markets (1). At the policy level there remains no clear case that repression of p2p will lead to greater funding for cultural production.
Organizations such as UFC Que Choisir and La Qaudrature du Net, politicians from PS, Greens, Communists and the Centre, as well as public figure such as Jacques Attali have continued to oppose against the law, mourning its antiquated premises. Attali has underlined that artists in favour of a Hadopi style solution risk embracing an industry framework which will see them squeezed between the majors and the ISPs. Commenting on the government’s current prorities he remarked:
“It has a certain coherence. That of defending a few stars who are politically highly visible, but who represent nothing. And whom, if one really thinks about it, are overvalued with regard to their artistic utility, not to mention their social utility. They don’t represent the real french creativity.” (2)
In response to arguments that the new legislative framework will strengthen intermediaries rather than artists whilst failing to incentivize the expansion of legitimately available content online, Frédéric Mitterrand has commissioned a report on these topics by three grandees going under the name of the Zelnik Commission. Their report is due in early November. This is almost certainly a prelude to a proposal to introduce an additional tax on internet subscriptions, money which will be passed on on to collection societies. Notionally this would be an expansion of the rules currently applying to blank media. Such a levy on other media supports is considered as compensation for their use in the making of private copies – reproductions not permitted in the online environment. The upshot is that users will end up both taxed on their connection and face punishment should they share proprietary works.
But notwithstanding the continuing climate of unreason, history obstinately refuses to be repealed: users continue to share massive amounts of files and introduce new material into the networks.
Joseph Steglitz put it well in an op-ed in Liberation on September 16th, questioning the logic behind reliance on intellectual property perspectives and remarked:
“Those producers whose business consists in delivering music from artists to consumers have no reason to exist today. It’s like trying to save the coach and horse industry in the age of the automobile.” (3)
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- civil liberties
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- European Court of Justice
- european directives
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- Pirate Party
- social cooperation
- steal this film