AGCOM and the Legal copyright. The crisis of the constitutional principle of separation of powers.

On January 3, 2011 was published by the Italian Communications Authority in the Official Gazette the Resolution 668/2010, which aims to regulate the powers of the Authority in the field of copyright in the context of electronic communications.

The resolution passed on December 17 by the Council of the Authority and published on 22 December on the Authority’s  website (actually December 24th ed) was opened for public consultation for a period of 60 days.

Among the provisions to be discussed there are some, specifically those provided for in Chapter 3.5 of the same resolution, which raise serious concerns regarding constitutionally protected rights, by virtue of the exercise of powers “summaries” direct and indirect inhibitory and removal of Internet content suspected of violating copyright, especially with regard to content from abroad.

The entire process outlined by the inhibition of section 3.5 of Annex B to the measure, is “going beyond” the scope of the Authority highlighting a possible conflict of powers between branches of the state.

Such a conflict would occur between the Authority for the Communications, by virtue of the institution by the authorities of administrative penalties and unhappy he reaches the point of cancellation of Internet content and the court is criminal under the powers attributes to it by the Constitution.

2 The Authority shall, without having the powers, the ordinary courts in assessing a criminal act, in the preparation of proceedings of the baked image of impartiality.

A first problem concerns the powers attribuitisi “motu proprio” in a matter for the Authority pertaining to the criminal court. The conduct sanctioned by the procedure outlined in Article 3.5 of the resolution approved by the Council by the December 17, that is the release of files on the network protected by copyright, are already required by law as a crime, it is in fact the case introduced into the Act on Copyright Law 43/2005, otherwise known as Decree Urbani.

 And in particular of the case provided for in point-to-a, Article 171, first paragraph, of Law April 22, 1941, No 633, which states: “Except as provided by art. 171-bis and Article 171-ter shall be punished by a fine of € 51 to € 2065 anyone, without having the right, for any purpose and in any form, “a-bis) shall make available to the public by entering into a system of computer networks through connections of any kind, an intellectual work protected, or part thereof; “.

And in the case provided for in Article 171 ter of the same standard for those who exercise the above activities for profit.

How do you remember those rules, including thousands of controversy (and warmly welcomed by the associations for the protection of copyright) had introduced the criminal responsibility of those who charge content on the network without having the permission of the owner.

 Paradoxically, those rules now seem a sort of “guarantee” for those who upload files on the network without the permission of the owner of intellectual property rights to get a fair trial and not a “summary” attribution of responsibility by AGCOM.

 Under these rules into the grid of any files covered by copyright in order for free (or profit), is an offense and shall be subject to the exclusive jurisdiction of the criminal court which will determine, according to the forms and guarantees provided by the Code of Criminal Procedure, the conduct of the man believed to have entered works on the Internet.

The Authority “pretends” instead of ignoring this rule stated in paragraph 3.5.1 of the resolution “without prejudice, in fact, the brutal repression, including the criminal law, the exploitation for profit of intellectual property, to preserve Exclusive of the prosecution, the legislature sought to introduce alternative mechanisms for prevention and response to illicit, but must be based on reasonable and proportionate means, against those who can use (even for purely private purposes), without having the right, works creative. ”

Contrary to what the whole “atecnicmente” Authority there is no division of jurisdiction between the Authority and the criminal court that is based on entering the network of files by way of profit or free of charge and that this is due to ‘AGCOM a power to intervene in matters of criminal law copyright.

 In both cases, both in the case where the file is made available on any platform like youtube by a private individual, as well as the same is put on the internet for profit is always the criminal courts have to ascertain the fact- crime and the criminal court to be able to judge whether the sanctions and possibly have an injunction of any kind.

 The ordinary Courts, not the Authority for Communications Safeguards.

3 The powers of intervention of the copyright law does not allow AGCOM to act on its own: the Article 182 bis and 182 ter of Law 633/1942.

In order to establish their “alleged” powers of sanction, the Authority for the Communications claims to have received under Article 182 bis of the law on copyright law to establish, suppress (and obviously) inhibit the conduct of those who places the files suspected of violating copyright in the computer network.

In particular, section 2.1 of the consultation document, the Authority said the Authority considers that fall within its supervisory activities under Article. 182 bis of copyright violations committed by the activities of broadcasters, as well as through the networks of telecommunication operators, and that it was competing for the actions of protection of copyright on the contents entered in the electronic communications networks (tv, internet and telecommunication networks). ”

But authority goes far beyond these alleged supervisory skills to become the “engine” of a judicial proceeding “parallel” that takes place without any procedural guarantees and without any judicial review, which clearly could be violating the rights of defense of the citizen and same principles of separation of powers that form the basis of our rule of law.

All powers to AGCOM Article 182 bis of the law on copyright, as well as for those already provided by the Urbani Decree, in fact, including the powers independently interpreted by the same authority, in fact, provide the necessary recourse to the judiciary for the possible detection of crime, with no possibility of any discretion regarding admissibility in relation to these crimes and no possibility of establishing a mechanism “parallel” to assign responsibility to that already exercised by the judge.

This is in accordance to what their usage by the Authority for the guarantees found in their “alleged” inhibitory power.

Article 182 bis, in fact, in highlighting a joint supervisory power between SIAE and Agcom regarding copyright provides a possible surveillance activities, however,  must follow the strict principles clarified by the same law:

1) If inspectors of the Authority or of the SIAE may experience violations of law have to do with article 182-ter, or “The inspectors, in the event of a finding of violation of law, draw up the minutes, to be forwarded immediately the judicial police for the completion of the acts provided for in Articles 347 and following of the Code of Criminal Procedure ”

2) in the cases referred to in that Article 182 bis, paragraph 3, the same standard adopted by the authority to establish their inhibitory power expected to perform a supervisory (ie before any possibility of detection of any crime which the judge) the same access as SIAE inspectors AGCOM and at the broadcasters, the supervision must be approved by the court.

So the authorities under the same rules:

 a) It has no power to establish pipelines for release of files on the network, the power that it is rather the judicial police, who must report, in case you consider to be the reference of the commission of a crime, the prosecutor

 b) it has no power of exercising powers or inhibitors of cancellation (the “selective removal”) that are (in case) reserved by law exclusively, to criminal court

Fulvio Sarzana
Studio Legale Roma Sarzana & Associati
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