Commissione Europea e AGCOM: le due versioni ( forse?) ufficiali della lettera spedita dalla Kroes all’AGCOM su diritto d’autore: in italiano e in inglese

Lettera-ue-a-agcom 

Queste sembrerebbero essere le due versioni ufficiali: in italiano ed in inglese della lettera della Commissione UE all’AGCOM, anche se la versione in inglese riporta la firma di Tajani e quella Italiana quella della Kroes.

Molti ( ad esempio l’amico Scialdone) mi fanno notare che in verità la Commissione avrebbe fatto le “pulci” all’AGCOM, rilevando in realtà molti difetti nella delibera AGCOM.

In sostanza l’intento della Commissione sarebbe stato quello di proteggere gli utenti chiedendo spiegazioni puntuali all’AGCOM, e per questo la missiva è stata firmata dalla Kroes e non da altri Commissari, molto più ostili alla tematica della libertà di espressione sulla rete

La missiva, come avevo anticipato ieri nell’UPDATE è firmata dalla Kroes e non da Tajani.

Sarà, ma io non comprendo però perchè nella richiesta di chiarimenti si evidenzi chiaramente come i principi di fair use siano incompatibili con la disciplina comunitaria delle eccezioni.

Non comprendo inoltre il perchè si facciano riferimenti al chiarimento sul  blocco dei siti esteri quando nello schema di regolamento dell’AGCOM il tema era stato del tutto superato e non capisco perchè si faccia riferimento al concetto di “blocco” e “rimozione” attraverso gli access provider  in relazione ai siti italiani che non è presente nello schema.

In realtà qualcuno mi fa notare che la precisazione sarebbe giunta direttamente dagli ISP per avere un chiarimento in merito.

Io non ne ho conoscenza e, dal momento che ho partecipato materialmente alle osservazioni prodotte dagli ISP   di  l’ASSOPROVIDER mentre non mi sembra che il quesito sia stato posto da quelli di AIIP alle Autorità italiane, non vedo quali ISP possano aver segnalato il fatto alla Commissione ( forse provider di altri Paesi? o la Repubblica Slovacca che avrebbe assunto una posizione apertamente a favore del copyright?) , ma ripeto, potrei sbagliarmi.

Sarà la deformazione professionale, ma se io non intendo far soffermare ( o voglio evitare che si possano introdurre meccanismi liberticidi)  un soggetto su fattori che non sono presenti in un testo non gliene suggerisco la riflessione a livello normativo?

E’ come se un soggetto ( ancorchè qualificato) chiedesse chiarimenti al Parlamento su una norma che sta per essere varata facendo riferimento a emendamenti che sono stati superati, perchè riproporli? Con quale intento?

Se cioè intendo proteggere gli utenti non suggerisco a qualcuno di “riflettere bene” sull’introduzione dell’uso amatoriale, o no?

Ad ogni buon conto allego i due testi, in italiano ( in allegato PDF)  e in inglese ( nel testo del blog, per ragioni di riservatezza delle fonti)  ( , precisando che il documento che avevo anticipato costituiva una mia traduzione del testo inglese che avevo appreso ieri in giornata.

Subject: Notification 2011/403/I

Sir,

“Where a legitimate entity believes that a certain content violates the author’s rights and1. The Italian authorities are invited to explain the scope of the notion of “legitimate entity” that[…]“? Could the Italian authorities explaindeclaration“, which is referred to both in Annex I (notice form) and Annex II. Could“Where the content to which the warning relates has been uploaded by third parties, the entity to1. Could the Italian authorities explain whether the obligation to notify the uploader pursuant to“The entity to which the counter notice is forwarded, where possible, shall notify the warning1. Could the Italian authorities explain what the extension of obligation laid down in this articleInvestigation states that:“The notice of commencement of the investigatory proceeding contains a summary of the facts,The time period of 48 hours (not even 2 working days) to make written statements of defenceMeasures for entities located in Italy states that:“The collective body may order the managers of sites whose domain names are registered by anThe Commission would like the Italian authorities to clarify why they use the criterion of theAuthority measures for subjects located overseas states:“The collective body, in relation to the managers of sites whose domain names are registered by5a) Order the site managers to comply with the Copyright LawCould the Italian authorities clarify whether the order of measures that the collective body may[…],“)?

Resolution 398/11/CONS of 6 July 2011 of the Authority for Communication

Guarantees approving a draft regulation on copyright protection in relation

to electronic communication networks.

Delivery of comments pursuant to Article 8(2) of Directive 98/34/EC of

22 June 1998

In accordance with the notification procedure under Directive 98/34/EC, the Italian authorities

notified to the Commission 2 August 2011 a draft regulation on copyright protection in relation to

electronic communication networks.

The draft Regulation deals with two sets of issues: the promotion and development of the legal

content and the establishment of the panel of experts in close connection to that; and the

introduction of copyright protection measures in relation to electronic communications networks.

As far as protection measures are concerned, the notified draft introduces new procedures to stop

the online infringement of copyright by providing for a copyright notice and takedown procedure.

The Commission notes that such an approach clearly coincides with its own objective to curb

online piracy at its source. It will therefore follow the national developments in this field with

great interest.

Examination of the notified draft text has prompted the Commission to issue the following

comments.

The Commission understands that the draft Regulation envisages a two phase copyright notice

and takedown procedure (hereafter: the NTD procedure):

1) the NTD procedure at the level of individual parties involved, according to which a

legitimate entity notifies the manager of the website or the audiovisual media or radio service

provider about the violation of the author’s copyrights;

2) the administrative procedure before the Italian Communications Authority (hereafter: the

AGCOM) in cases of the referral of the issues to the AGCOM.

I. The procedure at the level of individual parties

According to Article 6(1) of the draft Regulation, the NTD procedure can be initiated by the

legitimate entity, including trade unions organisations, by submitting a request to the manager of

the website where the alleged illegal content is available or to the audiovisual media or radio

2

service provider that made this content available to the public. Furthermore, Article 7 of the draft

Regulation provides for a so called counter notice procedure in cases where the up-loader

believes that the content was removed unfairly.

The Commission welcomes clarifications from the Italian authorities on the following questions:

Article 6(1) on copyright notice and takedown procedure states that:

copyright under its possession and that it has not been distributed in observance of the limits and

exceptions described in Articles 65 and 70 of the Copyright Law, it may submit a request,

including through trade union organisations, for the removal of such content to the manager of

the site on which it is available or to the audiovisual media or radio service provider having

made it available to the public following the procedure set out in this Section, except where these

are already involved in a notice and takedown procedure in relation to content or programs

distributed in violation of copyright. The warning is sent using the form given in Annex 1 to this

regulation and available on the Authority’s website, accessible via a link placed on the website of

the site manager or audiovisual media or radio service provider. “

can submit a notice about the illegal content. Could individuals not related to the right holder be a

“legitimate entity”? Could the Italian authorities clarify what organisations are covered by the

term “trade union organisations” ex Article 6(1) of the draft Regulation?

2. Could the Italian authorities explain the scope of the exemption from accepting the notice

submitted by the legitimate entity as identified in Article 6(1) of the Draft Regulation (”

except where these are already involved in a notice and takedown procedure in relation to

content or programs distributed in violation of copyright

to what type of procedure Article 6(1) refers to (e.g. individual; administrative; judicial)?

3. Could the Italian authorities explain what type of document(s) exactly is meant by ”

of accuracy of information

(counter notice form) and which is one of the elements of the notice and counter notice?

4. Could the Italian authorities clarify whether only those notice and counter notices are accepted,

which are done using the form available in the annexes to Regulation or whether it is sufficient if

the relevant information is provided?

5. Could the Italian authorities clarify whether the forms in Annexes 1-4 can only be submitted

through electronic means or they can also be printed and submitted by regular post or fax?

6. Article 6(1) refers to a request, for the removal of content which violates authors’ rights

the Italian authorities specify the meaning of “removal” in Article 6 (1) of the draft Regulation?

Does it also cover blocking?

3

Article 6(2) on copyright notice and takedown procedure states that:

which the request indicated in point 1 is sent, where possible, shall notify the uploader, which

shall have the right to file a counterclaim”

Article 6(2) only concerns an obligation to notify about the receipt of a notice or also concerns an

obligation to notify about the (intended) decision on takedown? Could the Italian authorities

explain what the extent of obligation laid down in Article 6(2) is?

2. Could the Italian authorities clarify whether the counterclaim mentioned in Article 6(2) should

be submitted within a specific timeframe and whether any decision on a notice can be taken

before the time for submitting a counterclaim has elapsed?

Article 7(2) on counter notice states that:

entity per Article 6, which will then have the right to submit its own counterclaims.”

is? In particular, could the Italian authorities give examples of situations in which it is not

“possible” in terms of Article 7(2) to notify the warning entity about a counter notice? What

procedure should be followed by the counter notice provider if after four days the content is not

restored?

With regard to the whole notice and takedown procedure at the level of individual parties

involved (Article 6 and 7):

1. The Commission notes that the Italian draft regulation uses different definitions, including

“website manager”, “audiovisual media or radio services provider”, “service provider”, and

“service providers”. The Italian authorities are invited to clarify who would be the entity affected

by the notice and take down procedure: “website managers and audiovisual media or radio

services providers” only, or “service providers” in general?

2. Could the Italian authorities clarify whether, according to Article 6 of the draft Regulation,

notices about the violation of the author’s copyrights can be submitted to internet access providers

or providers of mere conduit services in terms of Article 14 of Legislative Decree 70 of

9 April 2003?

3. Could the Italian authorities clarify whether service providers have an obligation to i) keep a

file with all notices received and all measures taken following the receipt of notices; and ii)

provide transparency about the receipt of notices and the measures taken following the receipt of

these notices?

4

II. Proceedings before the AGCOM

According to Article 8(1) of the Regulation, the copyright holder can refer the issue to the

AGCOM in cases where the alleged illegal content is not removed. Furthermore, the individual

counter claimer can also refer his request to the AGCOM in case his counter notice is not

satisfactory resolved (paragraph 2 of Article 8).

In view of this, the draft Regulation also provides for specific legislative solutions concerning for

example the investigation procedure (Article 9), the commencement of the proceedings and

adjustments (Article 11) and the conclusions of the investigations (Article 12).

As regards the administrative part of the NTD procedure in front of the AGCOM, the

Commission would welcome the following clarifications from the Italian authorities:

1. Article 9(4) on

giving indication of the alleged violation, of the relevant office and the manager of the

proceeding to which any written statements of defence may be submitted using the Authority’s

certified mail address, to be received within forty eight hours of the commencement notice and,

finally, of the term within which the investigation shall be concluded.”

under Art. 9(4) seem to be quite short. In view of effective right to defence, would the site

manager /audiovisual media service provider have other opportunities to submit information and

arguments before the procedure is concluded?

2. Article 13(1) on

entity resident or based in Italy to remove any content indicated in the report that has been

distributed in violation of copyright regulations.”

residence or the establishment of an entity who registered a domain name.

3. Article 13(3) concerns the specific procedures for repeated violations. Could the Italian

authorities clarify what specific procedures exist for repeated violations and how these relate to

Articles 6, 7 and 8 of Directive 2004/48/EC on the enforcement of intellectual property rights on

evidence and the right of information?

4. Article 14(1) on

an entity that is neither resident nor based in Italy but which distributes content intended for the

Italian public in violation of copyright regulations, may adopt the following measures:

b) Where the violation continues irrespective of the order per subparagraph a) for more

than 15 days after the order is sent, order the removal of all reported content distributed

in violation of copyright regulation

c) Where the violation continues irrespective of the order per subparagraph b) within the

terms indicated, report the case to the courts for the relevant proceedings”

adopt based on Article 14(1) of the Regulation has to follow the order that is identified in this

provision in view of the fact that the collective body may optionally adopt these measures (”

may adopt the following measures:[…]

Can, in accordance with Article 14, the collective body adopt a measure that consists of ordering

internet access providers to block access to illegal content in Italy?

Will the Authority provide transparency on the cases referred to it and the measures taken by it?

III. General questions

The Commission would also like the Italian authorities to clarify certain issues with regard to

entire draft.

1. Does the current wording of Art. 7(2) and 8(4) of the proposed regulation allow the uploader

in the counter-notice mechanism to refer the case to the ordinary judge, as explicitly envisaged

for the copyright holder in Art. 6(3)?

2. The Italian authorities are also invited to clarify the relationship between Articles 6(1)3, 8(3),

9(2), 11(3) of the Draft Regulation and Directives 2001/29/EC on the harmonisation of certain

aspects of copyright and related rights in the information society and 2004/48/EC on the

enforcement of intellectual property rights with regard to injunctions.

3. Since the draft Regulation is aimed at protecting IP and at promoting and developing the legal

offer of IP-protected works on the Internet, how does AGCOM reconcile these objectives with

the introduction of new exceptions and limitations in article 10?

The Commission invites the Italian authorities to take into account the above comments and reply

to the above questions.

Yours faithfully,

6

Vice-President Antonio Tajani

Buona lettura

Fulvio Sarzana

www.fulviosarzana.it
Studio Legale Roma Sarzana & Associati
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