Agcom and IP Enforcement in Italy: An overview on the new measures to be used against sites hosting materials that seems to be infringe copyright. The similarity to the first version of Hadopi in France.

 On December 17th, the Italian communications authority, Agcom (Autorità per le garanzie nelle comunicazioni) 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.

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!

New Measures

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.

Transparency? Nah…

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 ADICONSUM and ALTROCONSUMO , lawyers as Sarzana & Partners Law Firm,  business Association as ASSOPROVIDER and ASSONET and Association for the freedom of netizens as AGORA’ DIGITALE.

In recent days they have launched a site to coordinate opposition to the measures.*

*Thanks to Alan Toner,  intellectual property and communications researcher,  New York University, fellow at the Information Law Institute and the Engelberg Center on Law and Innovation, New York University.

Fulvio Sarzana
Studio Legale Roma Sarzana & Associati
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