Italy finally transposes the Barnier Directive but confirms the monopoly of SIAE on the collective management of online musical works copyrights

On 11 April, Italian Legislative Decree no. 35/2017 implementing the so-called Barnier Directive, i.e. Directive no. 2017/26/EU on the collective management of copyrights and the multi-territorial licensing of rights for the online use of musical works, entered into force.

Thanks to this decree, today the holders of copyrights and related rights on such works can freely choose, also in Italy, the entity to which they entrust the management of the latter, choosing among collective management organisations and independent management entities also based in other EU states.

Such news – despite many observers’ expectations – will probably have limited effects: in fact, the Decree still provides the application of article 180 of the Italian copyright law, which grants Società Italiana Autori ed Editori (SIAE), i.e. the Italian Collecting Society, the exclusive collective management of representation, execution, playing, broadcasting and mechanical/cinematographic reproduction rights of copyrighted works. In so doing, the Italian Legislator basically confirmed the monopoly of SIAE on most of the copyright management operations relating to online broadcasted musical works, without specifying what residual activities can be entrusted by the copyright holders to other collective management organisations and independent management entities. Thus, only the operators of the musical market could identify what such activities will be, waiting for the Italian Legislator to further intervene on this issue and resolve it.

In the same context, the Italian Antitrust Authority – Autorità Garante della Concorrenza e del Mercato – after having received many reports by artists and private collective management companies, started an inquiry proceeding in April to assess the alleged abuse of a dominant position by SIAE (put in place with the participation of Assomusica, an Italian association of live music exhibition producers) against competitors in the field of musical works copyrights collective management.

In particular, SIAE would: i) provide the authors with services reserved to it under article 180 jointly with other services not included in such reserve; ii) use non-transparent licence pricing policies to make comparison with competitors’ offers difficult, also putting in place preferential treatments in favour of certain categories of users; iii) request undue payments to authors whose rights it does not manage and collect royalties on behalf of authors who did not authorise it to do so; and iv) impose conditions limiting the collective management by foreign competitors. To the Authority, such behaviours, if ascertained, would be part of the complex abuse of a dominant position aimed at excluding competitors from the copyrights collective management market, given that these are capable of hindering the affirmation in Italy of new companies operating in the market, which could be hypothetically more innovative than SIAE.

The Authority also highlighted that after the inquiry proceedings conclusion it will assess if it is necessary to repeal article 180 in order to be fully compliant with European rulings on freedom of competition, movement and the provision of services.

The abovementioned inquiry proceedings should have been terminated on 30 April, as indicated by the Authority – if no extensions have been scheduled in the meantime – thus, in the next few days the Authority should publish its decision.