Legal analysis

Italy: Draft Regulation on Copyright Protection on Electronic Communication Networks

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ARTICLE 19

01 Oct 2013

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In this analysis, ARTICLE 19 examines the Italian Draft Regulation on Copyright Protection on Electronic Communication Networks (Draft Regulation), which was published by the Italian Communication Authority (AGCOM) on 25 July 2013. It seeks to contribute to the public consultation, which was opened to evaluate the proposed provisions of the Draft. Our analysis is based on international freedom of expression standards and the best practices in this area.

In our view, the Draft Regulation contains some positive elements in terms of freedom of expression, particularly the exclusion of Internet users who download content on peer-to-peer networks from the scope of the Draft. It also puts emphasis on the promotion of legal content and education of consumers.

At the same time, the Draft Regulation falls short of international standards on freedom of expression in key respects. We are especially concerned that the Draft Regulation provides for the blocking of entire websites, domain names or IP addresses.  These measures are both ineffective and deeply inimical to free expression due to the high risks of over-blocking. We are also concerned that blocking powers would be entrusted to a regulator rather than the courts.

ARTICLE 19 urges AGCOM to consider the recommendations outlined in this analysis in the final draft of the Regulation and make sure that the copyright regime in Italy fully compliance with international human rights standards.

Key recommendations

  1. Blocking orders of entire websites, domain names and IP addresses should be left out of the Draft Regulation;
  2. In the event that blocking orders are not removed from the Draft, AGCOM should not be empowered to issue blocking or content removal orders. Instead, these powers should be entrusted to the courts or other independent adjudicatory body;
  3. AGCOM should not be empowered to order the disclosure of private information about subscribers. Instead, these powers should be entrusted to the courts or other independent adjudicatory body;
  4. Consideration should be given to adopting rules, such as ‘notice-and-notice’, which do no more than require intermediaries to pass on complaints about copyright infringement to the alleged infringing party instead of requiring them to take down the material at issue upon notice;
  5. The deadline for submitting a counter-notice under the Draft Regulation should be extended to at least 14 days;  
  6. Time limits of between 1-3 days to comply with removal or blocking orders are too short and should be extended in order to allow for parties to appeal such orders;
  7. The Regulation should expressly mention the possibility of judicial review of blocking orders;
  8. The level of fines that can be imposed against website hosts and ISPs for failing to comply with blocking or removal orders should be reduced;
  9. A full list of blocked sites should be made public and regularly updated;
  10. The Regulation should explicitly provide penalties for abusive claims of online copyright infringement and abusive threats of litigation.  

To read the full Legal Analysis, please click here.

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