With the enactment of Legislative Decree No. 177 of November 8, 2021, the Italian legislator implemented the DSM Directive.
The Legislative Decree made significant amendments to Italian Copyright Law (Law no. 633 of April 22, 1941), with particular reference to digital uses of protected works and content.
Legislative Decree No. 177 of November 8, 2021
November 8, 2021
Amendments to existing laws.
One of the main aspects of Directive is the central role that the administrative authority AGCOM will be called upon to play. This mainly with reference to the adoption of specific regulations and the settlement of disputes. As for Article 26 paragraph 2 of DSM Directive, according to Article 3 of Leglsaltive Decree no. 177 of November 8, 2021 (implementing the Directive), the provisions of the decree also apply to works and other materials protected by national legislation on copyright and related rights in force on 7 June 2021. This is without prejudice to contracts concluded and rights acquired until 6 June 2021 shall remain unaffected.
Article 3 of the DSM Directive has been transposed in the new art. 70-ter of the Italian Copyright Law. Article 4 of the DSM Directive has been transposed in the new Article 70-quater, Article 70-ter and quater stay very close to the Directive provision. Artilcle 70-quater recognises the reservation right on text and data mining in the hands of copyright holders, related rights holders and database owners. The reference to database owners should cover both copyright and sui generis rights.
Article 15 of DSM Directive has benn transposed in the new Article 43-bis of Italian Copyright Law. This article specifies some passages of the corresponding EU provision such as, for example, the notion of "short extracts" to be understood as "any portion of publication that does not dispense with the need to consult the journalistic article in its entirety". . The Italian legislation implements the principle of fair compensation in Article. 43-bis, establishing that it is up to AGCOM to adopt a regulation identifying the criteria for determining the same, taking into account a series of factors ranging from the number of online consultations of the article to the advertising revenues obtained. In particular, AGCOM is responsible for the adoption of specific regulations that identify the criteria for determining fair compensation, identifying as elements of assessment the number of online consultations of the article, the years of activity, the market relevance of the publisher and the number of journalists employed, the costs incurred for technological and infrastructural investments by both parties and the economic benefits deriving, for both parties, from the publication in terms of visibility and advertising revenues. Without prejudice to the right to take legal action, the parties (after 30 days from the request to start negotiations without having reached an agreement on the amount of compensation) have the right to apply to AGCOM, which is called upon - within 60 days of the request - to assess the economic proposals made by the parties or, if not both are deemed to comply with the provisions of the relevant regulation, to fix the amount of fair compensation ex officio.
In the absence of an agreement after AGCOM's decision, each party may refer the matter to the judicial authorities (with the clarification that any unjustified limitation of publishers' content in search results during the negotiation period may be assessed for the purposes of verifying the obligation of good faith). With regard to the procedure for quantifying fair compensation, the proposed rule establishes the obligation for information society service providers to make available, at the request of the interested party or AGCOM, the data necessary to determine the amount of fair compensation within 30 days of the request, under penalty of up to 1% of the turnover achieved in the last financial year closed prior to notification of the dispute (excluding the benefit of reduced payment). This requirement corresponds to an obligation of confidentiality on the part of the publisher regarding the information acquired. With regard to authors, the scheme recognizes their right to receive a share of between 2 and 5% of the fair remuneration received, to be agreed on a conventional basis in the case of self-employed workers or also referred to collective bargaining in the case of employees.
Article 17 of the DSM Directive has been transposed in the new articles 102 sexies –decies of the Italian Copyright Law. These Articles stay very close to the Directive provisions, with however some peculiarities. Among them, as for the definition of online content-sharing service provider according to Article 2 paragraph 6 of DSM Directive, Article 102 sexies seems to consider not only the profit purposes but also the cost savings. Article 102 nonies provides that pending the decision on the complaint in respect of disputed and disabled content, the content must remain disabled. AGCOM has to implement specific regulation on complaint mechanisms.
The decision adopted by the service provider to disable the content may be contested with an appeal submitted to the AGCOM, which will adopt special guidelines for the management of complaint mechanisms. These mechanisms do not exclude complaints before the judicial authorities.
Chapter 3 was implemented through the adoption of new articles and the integration of existing ones. The interventions are very close to the Directive. AGCOM has been mandated for alternative dispute resolution in case of difficulties in reaching an agreement on the licensing of audiovisual works on VOD services (Article 110 ter); and for controveries on transparency and contractual compliance obligations (Article 110 sexies). In the latter two cases, the request for an alternative solution may also be submitted by authors' and artists' collecting societies.
The principle of equitable remuneration for authors and performers has been laid down as a general rule in Article 107 for all cases of assignment or licensing of exploitation rights with the exception of software authors. Rights holders may also assert their right to adequate and proportionate remuneration through collective management organisations or independent management entities. The remuneration must be commensurate with the value of the rights, the revenues from the exploitation rights, the relevant industry and collective agreements. Clauses to the contrary are null and void. Flat-rate remuneration is provided for authors and performers who make an ancillary contribution and when the calculation costs are disproportionate to the purpose
Article 19 of DSM Directive is implemented by Article 110 quarter. The latter is very close to the Directive, with some peculiarities. Among them, in the event of violation of transparency obligations, the AGCOM shall apply a pecuniary administrative sanction up to 1 per cent of the turnover achieved in the last financial year closed prior to the notification of the dispute. For the administrative penalties the benefit of the reduced payment does not apply. Failure to communicate the information required by law constitutes a legal presumption of inadequacy of the remuneration in favour of the rightholders.
Legislative Decree no. 177 of November 8, 2021: https://www.gazzettaufficiale.it/atto/stampa/serie_generale/originario