New Regulation of the Italian Communications Authority: copyright protection on electronic communication networks

With resolution no. 490/18, after a public consultation, the Italian Communications Authority (AGCOM) approved several amendments to the Regulation on copyright protection on electronic communication networks (we discussed the previous Regulation here on this blog, and the consolidated text of the new one is available at this link). The Regulation establishes an administrative procedure aimed at countering massive piracy, focused on the Authority’s prompt intervention against copyrights and related rights infringements committed both on the web and within audio-visual media services.

Firstly, the scope of application of the Regulation has been extended: in fact, it is now possible to file a complaint with the Authority even when the infringement has been committed through the “advertising, promotion or description of copyright and related rights infringements”. The new provision aims to counteract indirect infringements, such as the description of technical solutions to circumvent protective measures (i.eg. tutorials that provide practical instructions to access pirated sites).

In addition, the amended definition of providers (potential subjects of AGCOM’s orders) now includes instant messaging services which provide channels for the sharing of digital web-accessible content, even to non-subscribers (just like websites, to which they are equalled). Obviously, the AGCOM is still not empowered to act on private chats between users.

A further enforcement of the Authority’s powers results from the possibility to tackle both the infringements affecting the digital work as a whole, as well as only part of it.

Other important changes concern measures under Article 8, which are aimed at preventing the reiteration of infringements.

First of all, having assessed an infringement, together with usual injunctions or removal orders, the Authority is enabled to task the provider with the adoption of measures deemed suitable to prevent the risk of reiteration, taking into account its ability to intervene and the technical tools at its disposal; in this regard, it should however be noted that AGCOM expressly excluded in its Observations the possibility to impose the use of systems for the automatic recognition of infringing contents.

Second, with regard to those who provide hosting services in Italy, Article 8 entitles the Authority to impose the adoption of measures aimed at preventing a later upload of the same infringing contents.

Finally, in cases of infringing contents hosted on foreign servers, providers engaged in mere conduit activities are required to disable access to all the websites included in a special list periodically updated by the Authority.

Furthermore, the resolution at issue introduced a new provision. Under new article 8-bis of the Regulation, in case of assessed reiteration of the infringement – perpetrated through the reloading of removed content or the creation of an “alias” website – the Authority takes the appropriate measures within 3 days. In particular, it applies a financial penalty to the hosting provider and, on the other side, if content is hosted on a server based abroad, it includes the website that has to be disabled in the list mentioned above.

Finally, one of the most significant amendments concerns new Article 9-bis, under which it is possible to take urgent measures  in a very short time (as short as 3 days) when the infringement appears manifest and there is a risk of imminent, serious and irreparable harm.