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NEUTRAL ISPs AND STAY ORDERS, WHEN YOUTUBE IS UNDER THE DUTY TO PREVENT FUTURE POSSIBILE UPLOAD OF INFRINGING CONTENTS BY USERS

28/04/2017

The Court of Turin, with judgment published on 7 April 2017, for the most part accepted the claims of Delta TV Programs S.r.l., finding the defendants Google Inc., Google Ireland Holdings and Youtube LLC liable for the infringement of the intellectual property rights of Delta TV Programs S.r.l. and in particular its economic rights over television series uploaded on Youtube. The defendants were ordered to remove and eliminate such audiovisual content from Youtube and to prevent its future upload. The Court also ordered that the defendants pay damages to the claimant for a total sum of 250.000,00 Euros.


 

Delta TV S.r.l. is a company operating in the fields of editing, production, rental and distribution of audiovisual and television programmes. The company is the exclusive holder of economic rights in Italy over certain South American television series. Delta TV also holds the rights over the Italian version of such audiovisual works, in so far as it dubbed with its own means the works in their original language. The claimant learned that a certain number of episodes of the television series, in their Italian version, had been uploaded on the internet web sites youtube.com and youtube.it, where they could be watched directly and for free by all internet users. For this reason, Delta TV started proceedings against Google and Youtube asking for the ascertainment of its copyright over the television programmes.

The defendants firstly complained that no evidence was given as to the ownership of the claimant with regard to the economic rights over the television series. The Court of Turin rejected this preliminary argument and observed that the claimant had provided documental proof related to the existence of license agreements concerned with the exploitation of economic rights over almost all of the audiovisual works being discussed; while, for the other works, the Court stated that it mattered little that no evidence had been produced, given that the claimant was acting for the protection of its economic rights over the Italian version of the television series which, in itself, amounts to a derived work that may be independently protected under art. 4 of the Copyright Law.

On the merits, Youtube LLC was qualified as a “hosting provider” and so the provisions of Legislative Decree 70/2003 (implementing EC Directive 2000/31) were applicable to it. Consequently, Youtube had no obligation to preliminarily verify the actual copyright ownership of the individuals who uploaded the videos, also considering that a hypothesis of liability would only arise if Youtube was informed of the unlawful nature of the uploaded videos. The Court also noted that such “ex post” obligation could only arise if a cease and desist communication was sent to Youtube containing the exact URL identifying the presumably unlawful upload.

As for the case at hand, the duty of the defendants to check and remove the unlawful content had only arisen with the serving of the writ of summons containing the exact URLs, and not with the generic cease and desist letter (which did not contain the disputed URLs) that the claimant had sent to the defendants approximately 9 months prior to the commencement of the proceedings.

The evidence was examined in the course of the trial and it confirmed the existence of a legal obligation of the Youtube administrators to actively prevent new uploads of videos that had already been reported and removed. In this regard, it was observed that such videos had never been removed but only obscured by the defendants, which meant that those videos were still visibile from abroad and also from within Italy itself if one were able to simulate usage of a foreign connection.

The Court of Turin therefore confirmed the liability of the defendants for the infringement of art. 16 of Legislative Decree 70/2003, assessed as having occurred from the date of serving of the writ of summons. The defendants were also ordered to pay damages to Delta TV S.r.l.. Moreover, the defendants were ordered to cancel and remove the disputed videos pursuant to art. 156 of the Copyright Law and to prevent the further uploading on Youtube of such videos. The additional criminal measures and the requested publication of the judgment were, however, held to be disproportionate considering the nature of the case in question and, for that reason, those claims were rejected.


ITALY IS THE EUROPEAN NATION THAT STRUGGLES THE MOST WITH COUNTERFEITING, SAYS A RECENT OECD ./. EUIPO STUDY

21/04/2017

A recent study published by the OECD in collaboration with the EUIPO reveals data concerning the economic and social impact of the trade in pirated and counterfeit goods in the major economies of developed countries. Among European companies, Italian ones are the hardest hit from unlawful activities of pirating and counterfeiting.


 

The Organisation for Economic Co-operation and Development (OECD), in concert with the European Union Intellectual Property Office, has published a recent study focusing on the economic and social impact of trading in counterfeit and pirated goods in the European Union. The data analysed by the European Offices clearly show that Italy is the hardest hit by trading in pirated and counterfeit goods, second only to the United States of America.

The European Offices analysed the outcomes of over a million seizures of pirated and counterfeit goods carried out by the customs offices across the World in the period 2011/2013. The main databases utilized for the present study are those provided by the World Customs Organisation (WCO), by the Directorate General for Taxation and Customs Union (DG TAXUD) and by the US Department for Homeland Security (DHS). Moreover, several experts in matters of commerce and customs protection were interviewed.

The study shows that in 2013 the sale of counterfeit products exceeded 2.5% of world-wide sales of products, amounting to approximately 461 billion dollars. With regard to the European Union, in 2013 pirated and counterfeited products formed over 5% of importations, for a value of about 85 billion euros. Consequently, on the basis of the data that has been collected, the impact of counterfeiting and piracy on the economy of developed countries (such as the economy of the European Union) is double in comparison to that which affects the rest of the World. A vast range of products has been the object of counterfeiting and piracy activities. From the analysis of the data it emerges that any product to which IP assets may confer an additional value has become the target of counterfeiting. Among the most affected products are luxury items (for example, watches, perfumery and leather products) in addition to mass consumer products (toys, pharmaceutical products, cosmetics and food items).

The majority of brands are targeted by counterfeiting activities. However, it is worrying to find that, within the European Union, Italian companies are the most affected by such phenomenon, and globally are second only to US companies. On the other hand it is no surprise that China is the major exporter of counterfeit products towards the European Union. Moreover, counterfeit goods entering the European Union follow increasingly diversified and complex routes, taking advantage of transit stations where the right holder is prevented from taking immediate and effective action for the protection of his rights. This is due to the ability of counterfeiters who attempt to hide the original starting point of the goods and to the re-packaging and re-labelling of the products. Furthermore, it must be considered that while imported products are generally subjected to accurate inspections by the local customs authorities, goods in transit do not fall within the scope of the inspections and therefore are less likely to be intercepted. The preferred routes for global counterfeiting are Hong Kong, China and the United Arab Emirates.


LGV AVVOCATI CONTRIBUTES TO THE DRAFTING OF THE SOFTWARE GUIDELINES THAT WILL BE PRESENTED AT THE CONFERENCE OF SMALL-MEDIUM SIZED COMPANIES IN ROME NEXT 26 APRIL

19/04/2017

On 26 April 2017, a press conference will be held for the presentation of the initiative supported by BSA | The Software Alliance known as “Guidelines for legal software in small and medium sized companies”. BSA is the main international organization for the protection of the rights of companies operating in the field of software. The initiative is also supported by the General Directorate for Libraries and Cultural Institutions (GDLC – Ministry for Culture and Tourism). LGV Avvocati, as law firm representing BSA, has contributed to the drafting of the guidelines devoted to small and medium sized companies.


 

Software is a fundamental resource for all companies, which therefore must consider how best to manage it. Despite this, however, the last Global Software Study produced by IDC has estimated that 45% of software used in Italy is illegal. BSA | The Software Alliance has always been involved in activities for the divulging of information and education on such topic, and with the assistance of LGV Avvocati has drafted guidelines for Italian companies, with a view to facilitating the correct use of software whilst at the same time warning companies of the risks – not only those of a legal nature – that pirated use of software may involve. The guidelines, which in detail set out the best practices to follow for the enhancement of software and explain the sanctions which the company may face, will be presented in coincidence with the Global Day for Intellectual Property, on 26 April at the offices of FB & Associati in Rome.


INTERESTING DECISION OF THE REGIONAL ADMINISTRATIVE TRIBUNAL FOR LATIUM ON UNFAIR COMMERCIAL PRACTICES IN THE FIELD OF TELEVISION SERVICES.

11/04/2017

With recent decision of 22 March 2017, the Regional Administrative Tribunal for Latium had to consider the petition filed by Sky Italy for the annulment of the measure adopted by the Competition and Market Authority (AGCM) in its meeting of 23 December 2008. The Tribunal upheld the decision taken by AGCM and ordered Sky Italy to pay an administrative penalty of € 200,000.00 for unfair business practices concerning the conclusion of contracts by telephone.


 

Following complaints lodged by consumers, in early 2008, the ACGM started a preliminary investigation against Sky Italy aimed at verifying the integration of alleged unfair business practices, concerning the activation of television services through the conclusion of distance contracts (in particular, by telephone). The disputed measure condemned the conduct of the applicant on two counts, subject to separate analysis: i) the activation of additional services not consciously required by the nominee subscription, on the one hand, and ii) the activation of subscriptions, services and additional premium services with differing characteristics from those promised, on the other.

In the first case, the decision of the AGCM was confirmed by Regional Administrative Tribunal for Latium, which assessed that there was sufficient evidence to show that the call center operators of the applicant did not provide to the users – to whom the subscription of new offers was proposed – suitable and adequate information to enable them to understand that the purchase would have been finalized following the provision of the single telephone consent, and not as a result of the signing of documents sent later to their home. In addition, it was found that very often the enabling of the offers was subject to consent by people other than the subscription holder (i.e. cohabiting delegates in possession of information about the customer’s position) and that were not carried out further checks about the willingness of the real owner to subscribe the promotions. The commercial practice in question was therefore deemed, under this first aspect, aggressive and therefore prohibited.

In the second case, with reference to the extension of subscriptions, additional services and premium services with differing characteristics than those promised, the conduct of Sky Italy has been qualified as misleading, given that the differences mainly related to the actual cost of  the offers and in particular the lack of indication of the activation costs and a clear illustration of conditions and time limits for receiving the service. In particular, the Regional Administrative Tribunal pointed out how it should be recognized that there was an inherent weakness of the consumer with regard to the counterparty, due to the simultaneous physical distance of the contracting parties, which makes particularly significant the burden of providing clear and exhaustive information regarding the immediate purchase of the package and the content of the services offered.


AGCOM REGULATION ON COPYRIGHT HELD LAWFUL: REGIONAL ADMINISTRATIVE TRIBUNAL ISSUES VERY RECENT JUDGMENT. THE LAW FIRM LGV AVVOCATI HAS ALREADY DEALT WITH THE ISSUE ON THE 25TH EDITION OF THE PUBLICATION “QUADERNI DI AIDA – IL REGOLAMENTO AGCOM SUL DIRITTO D’AUTORE”.

4/04/2017

With an extremely recent decision dated 30 March 2017, the Regional Administrative Tribunal for Latium rejected the claim for annulment of the regulation adopted by the Communications Authority with resolution no. 680/13/CONS of 12 December 2013 concerning the protection of copyrighted works on electronic communications networks. The issue and the regulation have already been commented by Ms Simona Lavagnini just after its entry into force, in 2014, in the 25th release of the well-known publication “Quaderni di AIDA- Il regolamento Agcom sul diritto d’autore”.


 

AGCOM is the Italian Communications Authority, responsible for supervising the implementation of fair competition among market operators and for protecting fundamental rights in the telecommunications, mass media and editorial sectors. In December 2013, the Authority adopted a Regulation dealing with the protection of copyrighted works made available on electronic communications networks (foremost, the Internet). The most important provisions of the Regulation are those allowing the copyright holder to petition the Authority in cases where his or her digital work has been made available on an Internet page and he or she believes that doing so amounts to an infringement of the Copyright Law. The Regulation then provides for an examination phase involving the service providers and, if possible, the person or entity that has made the content available on the web (i.e. the “uploader”), as well as the administrator of the web page and Internet website. This procedure can either end with the archiving of the case; or, alternatively, where a violation has been found, the Authority can adopt different types of measures such as selective removal of the works, disabling access to said works or disabling access to the Internet website. The innovative powers conferred by the regulation to the Authority brought some Italian scholars to examine in depth the upcoming scenario in the on-line copyright enforcement. The results of said analysis have been published on the 25th release of the well-known publication “Quaderni di AIDA” to which Ms. Simona Lavagnini has actively collaborated.

Shortly after its adoption a claim was put forward before the Regional Administrative Tribunal for Latium by a varied host of consumer and industry associations, who set forth a number of arguments which, summarily, were to the effect that with the adoption of the Regulation the Authority had exercised powers it had not been granted under the law. However, with its decision of 30 March 2017, the Tribunal held that such claim had no basis, for several reasons.

To begin with, it emerged that from a global reading of the applicable norms, the electronic communications providers are – contrary to what had been argued by the petitioners – required to collaborate with the Authority in pursuing copyright infringements carried out on their networks. More precisely, the Tribunal held that: “a systematic reading of the legislation confirms the existence of regulatory and supervising powers which the Authority can exercise with respect to the service providers, also by way of application of measures aimed at ending infringements of the Copyright Law, these being remedies that are concurrent and not substitutive of those conferred on the ordinary legislative authorities” (para. 6.4 of the judgment). Therefore, the Tribunal held that the Communications Authority is indeed the body responsible for monitoring copyright infringements occurring within the context of electronic communication, that it could and should have adopted means of exercising its functions, that it did so with the adoption of the Regulation and that this in no way encroached upon the jurisdiction of the ordinary courts (so-called “judicial and administrative double-track”). Furthermore, the Tribunal found that the adoption of the Regulation complied with the Italian Constitution. The Tribunal explicitly stated that, by adopting the Regulation, the Communications Authority had validly exercised its regulatory powers and, moreover, that the provisions of the Regulation “are not such as to raise any issues of unconstitutionality requiring intervention by the Constitutional Court” (para. 8).

In addition to the above, the Tribunal went on to consider the other points of the claim for annulment of the Regulation. In particular, the Tribunal held that the Authority can also issue blocking orders against infringers of copyrighted digital works, without thereby infringing EU law  (para. 11 of the judgment). It also addressed the claim set forth by the petitioners to the effect that the costs of removals of infringing content entirely fell upon the ISPs, whereas the copyright holder, who could unlimitedly report infringements, incurred no such expenses. The Tribunal was unpersuaded by such argument and rejected it completely, incisively noting that “omitted financial contributions cannot determine a lack of protection [for the copyright holder]” (para. 15 of the judgment). Finally, the Regional Administrative Tribunal found that the Regulation and its provisions complied with EU law, noting especially that the Communications Authority had, as early as September 2013, conveyed to the European Commission the text of the proposed scheme of the Regulation, as required by EU Directive 98/34 (so-called transparency directive). The Commission did indeed submit its own observations and, subsequently, upon receiving the updated version of the Regulation draft in January 2014, stated it had no further comments. Consequently, no issues could be raised with regard to the compliance of the Regulation with EU norms either, and for all those reasons the Tribunal rejected the claim for annulment of the Regulation adopted by the Communications Authority.