THE IMPLEMENTATION OF THE COPYRIGHT DIRECTIVE IN ITALY AND THE NEW LIABILITY REGIME FOR ONLINE SERVICE PROVIDERS

21/09/2021

On 5 August 2021, the draft legislative decree transposing EU Directive 2019/790, by which the European legislator updates copyright on the internet, was adopted. Of particular importance are the provisions on the liability of “online content-sharing service provider”, even if they are open to divergent interpretations.

 

On 5 August 2021, the Council of Ministers adopted the preliminary draft legislative decree transposing EU Directive 2019/790 on copyright and related rights in the digital single market, which will now be submitted to Parliament for scrutiny before being introduced into domestic law by the Council of Ministers in its final version.

The transposition of this Directive is far-reaching as it aims to innovate the regulation of online copyright and to balance conflicting interests such as users’ freedom of expression and platforms’ freedom of economic initiative.

The importance of the Directive is constituted, not only by the concession of new rights connected to the publishers, but above all, by an incisive modification of the system of responsibility configurable in the hands of the suppliers of Internet services, holders of the technological ” tools” through which the violations of copyright are committed.

In particular, it must be stressed that the dissemination of copyrighted content has increased thanks to the services offered by providers, which allow the exchange and storage of such content in a very fast and easy way for their users. Therefore, although we are witnessing a dematerialisation of creative works, it cannot be said that their transmission over the network does not maintain a physical component, i.e. the use of the infrastructures provided by the providers. In fact, they constitute a fundamental crossroads for sharing protected content on the network and it is for this reason that the European legislator has identified in them an essential role in combating content that infringes copyright.

The Directive, as far as it is relevant here, is of considerable interest for the change of course adopted by the European legislator with regard to the providers’ liability. The Directive, in fact, identifies a different category from those determined by the Directive 2000/31/EC, sanctioning a responsibility with a positive approach, unlike the exemption regimes provided by the e-commerce Directive. The European legislator focuses on platforms that allow the storage and sharing of copyright-protected content, the real key players in the dissemination of creative works online.

After a very tumultuous legislative process, in particular with regard to the provision concerning the relationship between providers offering services of storage and public access to copyright-protected content and rightholders, a final version of today’s Article 17 of the new Copyright Directive has been reached.

The purpose of this provision can be found in recital 61. According to what is stated in recital 61, the activity carried out by providers of services for the sharing of copyright-protected content contributes to creating “uncertainty” as to the legal situation of those providers. The question arises, first of all, as to whether their activity constitutes a use of content protected by copyright and, secondly, as to whether or not they must request the consent of the right holders in order to be able to use the protected works.

This uncertainty is then also projected onto the rights holders themselves, who find it difficult to understand if and how their works are being used, running into not insignificant obstacles in obtaining fair compensation.

Finally, recital 61 expresses one of the main objectives of the Directive, i.e. the facilitation of the conclusion of licensing contracts between rights holders and suppliers of online services, in such a way that the former achieve fair results also in economic terms, in any case not by imposing contractual conditions “from above”, but in respect of the freedom of economic initiative.

Having established, therefore, the intentions on which the provision is based, the European legislator has established that if an Internet provider acts in such a way that his action can be configured as granting access to copyrighted material to the public, he must request authorisation from the owner of the rights to that material.

An essential element that innovates the scope of the responsibility of the new category of the “online content-sharing service provider”, as defined by the Directive, is that the consent obtained by these last, stipulating, for example, ” licensing agreements” with the holders of the rights, must concern also the “acts carried out by users of the services falling within the scope of Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis or where their activity does not generate significant revenues”. The incidence of this obligation is understandable also in the light of the absence of the operability of the regime of exemption from liability defined by Article 14 of the e-commerce Directive, where providers carry out acts of communication to the public or making available to the public of content uploaded by users.

The strict obligation imposed on these intermediaries, however, is mitigated through a sort of exemption from liability that intervenes for the benefit of those who have not obtained an authorisation from the rightholders, on condition that a number of precautions are observed.

Firstly, (a) providers are required to have made ‘best efforts’ to reach an agreement with the rightholder; (b) secondly, providers must have ensured that the works identified with the rightholder are not made accessible to the public by means of their own technologies, by making, also at this juncture, ‘best efforts’ and by observing ‘high industry standards of professional diligence’; (c) finally, online service providers must, in any event, have acted without delay to disable access to or remove the content identified following a notification received from the rights holder and have made ‘best efforts’ to prevent the further and possible upload of the content identified by the rights holder.

In analysing these legal provisions required of the provider who wishes to benefit from this sort of new safe harbour, the expression “best efforts”, used by the legislator to emphasise the efforts made by the service provider to obtain authorisation from the rights holders, becomes particularly important. This wording risks creating discrepancies between the laws of the various Member States at the transposition stage. The connotation that the expression in question may have, in fact, can be both quantitative and qualitative. More specifically, if, on the one hand, it is interpreted as meaning ‘maximum efforts in an absolute sense’, there is a risk of placing an excessive burden on service providers; on the other hand, if it is interpreted as meaning more like ‘best possible efforts’, it could again place right holders in a situation of legal uncertainty. National legislators will therefore have to be careful to transpose this expression through the principles of reasonableness and proportionality.

In conclusion, the European institutions have become aware of the need to protect copyright in a more effective and efficient way, since it has been identified as a valid driver of creativity, as well as an important economic incentive for the creative industry and the economy in general, although the legislative instrument of the directive could leave room for different internal regulatory texts that would fragment the European Union’s proactive work.

Alfredo Bergolo