Abstracts on ” Power of Italian Communications Authority (Agcom) to rule copyright online”,
By Giuseppe Zucconi Galli de Fonseca.
Master of Laws (LL.M.) in Intellectual Property by WIPO and the Turin University.
Can AGCOM Deal With Copyright?
The biggest concern of the regulation regards whether an administrative authority like AGCOM is actually vested with the power to issue a regulation in this field and, in general, to enforce copyright.
Most scholars and commentators maintain that neither Italian law nor EU law have ever granted AGCOM such powers.
That makes the Italian solution much more dubious than the French one: HADOPI is exercising its functions on the basis of a precise national law (i.e., the Hadopi Law, although that law, before its revision, was considered partially contrary to the French Constitution), while AGCOM’s activities, according to the majority of scholars, have no legal basis at all.
Based on the present legal system, every such regulation in the field of copyright has to be issued by the Parliament and every order for the enforcement of copyright is reserved to courts, leaving no space for administrative authorities.
Indeed, the regulation was recently challenged before Italian administrative authorities, and that may lead to the annulment of it, or at least to the suspension of its efficacy.
Caching providers, originally included in the first draft of the Regulation, are no longer listed therein. Linking providers are also excluded.
Interestingly, a first attempt of issuing a regulation was made by AGCOM starting from 2010, but the strong debate at that time around the issue of AGCOM’s lack of power led to the failure of that first version.
Nothing has actually changed in this respect, and the present regulation is still subject to the same doubts.
However, the outgoing chairman simply avoided polemics by approving the scheme just a few days before the new chairman was installed.
AGCOM, on its side, maintains that all necessary powers are granted to it by the ECommerce Directive and the national implementation thereof (Italian Legislative Decree No. 70/03), as well as other pieces of Italian legislation.
Although AGCOM is supported by important institutions and some eminent academics, 97 the critical opinion of AGCOM is clearly the prevailing one among jurists and independent stakeholders in general.
Last but not least, the “United Nation Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,” Frank La Rue, recently raised concern about the compatibility of AGCOM regulation with fundamental rights. 99 The disputed issue of the legitimacy of AGCOM to handle copyright and to issue regulations in this respect comes before any other evaluation of the merit of the regulation itself. Even before assessing the compatibility of this new piece of (secondary level) legislation with the criteria set forth by EU law and ECJ case law for balancing fundamental rights, it is the very existence of the regulation that causes serious concerns.
Objections To Merit.
Aside from the macroscopic lack of legislative authority already examined in paragraph 3.2 above (which would alone be sufficient to deem the whole regulation inconsistent with Italian and European law), the regulation shows some provisions which are clearly not in line with the most recent ECJ precedents.
First of all, the right of defense seems not to be properly guaranteed.
By providing the administrative review of defensive briefs described in Article 8, AGCOM is de facto depriving users of judicial review.
Although the administrative procedure can be immediately interrupted if one of the parties involved initiates proceedings before the judicial authority (Art. 7 paragraph 7), alleged infringers will likely find it faster and more appropriate to make use of the right to file a defensive brief with AGCOM rather than starting a new action before a court.
Consequently, the majority of cases will be decided through AGCOM’s administrative procedure.
The European Commission, in its recently published comments on the first draft of the regulation, showed its concerns with specific reference to the right of defense, which in its opinion may be impaired by the tight timeframe of the administrative proceedings, especially in case the terms are shortened
In this respect, ACGOM doesn’t seem to have followed the directions of EU institutions that there must be a balance between opposing fundamental rights.
Furthermore, according to Article 17, the AGCOM collegial body’s decisions may be appealed before Italian administrative courts. To AGCOM’s supporters, this provision represents the guarantee of judicial review on all orders issued by the Administrative authority
. However, in the Italian legal system, administrative courts can only decide the legitimacy of an order, and are not entitled to assess private right matters like copyright ownership and relevant infringements.
Besides the right of defense, the regulation endangers freedom of expression.
The AGCOM regulation will likely bring about the removal or disablement of legitimate content.
First of all, the regulation has no provisions to prevent claimants indicated in Article 6 from filing unfounded or even intentionally misleading claims. AGCOM could have easily found an example of a mechanism avoiding such abuses in the DMCA, which provides for liability for misrepresenting the existence of an infringement.
Unfortunately AGCOM has no similar provisions. As a consequence of this total lack of deterrent against abusive notices, a subject receiving an AGCOM notice of an unfounded claim may prefer to simply remove the relevant content rather than mountain a defense.
The main danger for freedom of information is the possibility of an order to “disable access to the website” (Article 8 paragraph 4).
The availability of such website blocking simply depends on whether the website hosting infringing content is located outside of the Italian territory, and is not based on more substantial reasons, like, for instance, the fact that the website at stake is completely dedicated to copyright infringement. With this provision,, the blocking of legitimate content alongside infringing content is unavoidable.
Simply put, AGCOM’s solution seems not to have taken into consideration the above analyzed guidelines provided in the Telekable case about tout court blocking orders.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2714269
Fulvio Sarzana
www.fulviosarzana.it
Studio Legale Roma Sarzana & Associati
