Thanks to Angelo Aimar for collaborating on this article
On May 26, 2023, AGCOM published Resolution No. 115/23/CONS implementing Article 102-decies of Law No. 633/1941 (“Italian Copyright Law”), which, in turn, transposed Article 17(9) of Directive (EU) 2019/790 (“DSMCD”). The approval of Resolution No. 115/23/CONS closes the public consultation process opened by AGCOM with Resolution No. 276/22/CONS in July 2022, and represents another step toward full transposition of the DSMCD into Italian law.
Attached to the resolution are Annex A, which contains guidelines for the complaint and redress mechanism that an online content sharing service provider (“OCSSP”) must implement (the “Guidelines”), and Annex B, which contains AGCOM’s regulation for settlement of disputes between OCSSPs and users (the “Regulation”), both addressed briefly below.
Resolution No. 115/23/CONS
This resolution includes the results of the public consultation that preceded its approval and AGCOM’s observations in response to comments submitted by stakeholders. Because the Guidelines and the dispute resolution mechanism approved with Resolution No. 115/23/CONS are so critical, many industry players got involved in the public consultation. These included OCSSPs and collective management organizations representing rightsholders. The resolution reports on general comments and the corresponding observations from AGCOM, followed by comments and observations regarding the Guidelines and the Regulation.
Annex A: Guidelines for the complaint and redress mechanism
AGCOM issued the Guidelines to implement para. 2 of Article 102-decies of Italian Copyright Law, which transposed Article 17(9) DSMCD. Significant provisions include AGCOM’s requirement in the foreword to the Guidelines that the complaint and redress mechanisms that OCSSPs implement be quick and effective, as established in Article 17(9) DSMCD. In addition, AGCOM clarified that the Guidelines take into account the European Commission’s Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market (full text here), as well as the judgement of the Court of Justice of the European Union delivered in case C-401/19—Poland v. European Parliament and Council (full text of the decision here).
The Guidelines include general principles that do not restrict the freedom of OCSSPs to choose which measures to adopt, under the principle of net neutrality, or whether to maintain the complaint systems already in place, as long as the Guidelines’ principles are followed and those systems enable quick and effective complaint processes.
The Guidelines go on to provide an overview of the relevant provisions of the DSMCD, including in light of the European Commission’s Guidelines on Article 17, and of the provisions of Italian Copyright Law. This section aims to clarify the exact scope of the complaint and redress mechanism. Regarding the right to file a complaint, OCSSPs shall establish and make available to users rapid and effective complaint and redress mechanisms. No limitations may be placed on the exercise of the right to file a complaint, except for cases where the complaint is inadmissible due to a lack of key elements, including, inter alia, identification of the content disabled or removed, or when the OCSSP finds the complaint to be manifestly groundless. OCSSPs should provide complaint and redress mechanisms in Italian and specify that Italian Copyright Law applies. In a change to the draft guidelines that were subject to public consultation, the final version of the Guidelines clarifies that an OCSSP should also indicate the party claiming ownership of the rights to the disabled or removed content.
Users may file complaints about decisions made by OCSSPs to disable access to content or remove it taken:
- ex ante, when rightsholders have provided “relevant and necessary information” in advance, or when the same content was already the subject of a previous sufficiently substantiated notice (i.e., filtering);
- ex post, following a sufficiently substantiated notice (i.e., notice and takedown).
In any case, an OCSSP should employ great care and diligence and make best efforts (or “maximus efforts,” as the Italian transposition reads) to fulfill obligations under Article 102-septies Italian Copyright Law before uploading content that could cause significant economic harm to rightsholders. To this end, AGCOM observed that prompt human ex ante verification with reference to earmarked content may be appropriate. With respect to the OCSSP decision-making process for disabling access or removing certain user-uploaded content, the Guidelines contain general indications for OCSSPs useful in the scenarios outlined above. This includes a definition of “manifestly infringing” content.
On the grounds for complaints initiated through the mechanism outlined by the Guidelines, AGCOM noted that cooperation between rightsholders and OCSSPs must not affect lawful use of copyright-protected works (i.e., it must not infringe copyright or related rights). More specifically, this may include use:
- subject to exceptions and limitations provided by copyright and related rights;
- made by those who are entitled to use the uploaded content;
- not eligible for copyright or related rights protection (e.g., works in the public domain).
In principle, exceptions must pertain to the right of reproduction and to the right of communication to the public and must relate to the benefit of all users and not just to certain beneficiaries. In an addition to the draft guidelines that underwent public consultation, AGCOM maintained that the respect for an author’s moral rights must also be ensured, e.g., by means of credits.
AGCOM emphasized the principles that should be applied by OCSSPs in managing complaints. Inter alia, AGCOM noted that decisions on disabling/removal requests shall be subject to ex post human review and, pending the decision on a complaint, the content under dispute shall remain disabled, according to the Italian transposition of Article 17 DSMCD.
The last section of the Guidelines illustrates the procedural steps to be followed by OCSSPs in the context of the complaint and redress mechanism, as well as the supervisory and sanctioning powers attributed to AGCOM to ensure that the Guidelines are applied. The provisions define the scope of application of the Guidelines, the applicable general principles, the content of the communication of an OCSSP’s decision on the complaint, the filing process, handling of the complaint and the decision on it, the supervisory authority of AGCOM, and related administrative sanctions.
Annex B: Regulation concerning the settlement of disputes between OCSSPs and users
To implement para. 4 of Article 102-decies Italian Copyright Law, AGCOM issued the Regulation concerning resolution of disputes over OCSSP decisions in the context of the complaint and redress mechanism. The Regulation details the relevant definitions and parties involved, its purpose and scope of application, procedure filing and initiation, terms and deadlines, outcomes, and judicial remedies available against AGCOM decisions.
Reflecting stakeholder submissions during the public consultation on the draft version of the guidelines, the final Guidelines and the Regulation include, inter alia, minor adjustments to some procedural terms and recognition, albeit partial, of the role of rightsholders and their representatives in the dispute resolution process. The resolution and the preamble to the Guidelines contain valuable insight into AGCOM’s interpretation of the “value gap” provision.
AGCOM has partially incorporated some of the suggestions made by participants in the public consultation on the draft versions of the Guidelines and the Regulation. However, it remains to be seen how OCSSPs will adapt to these new measures in the near future, and whether—and if so, how—users will make use of the new rights and procedures detailed by AGCOM in Resolution No. 115/23/CONS in application of the DSMCD and its Italian transposition, which reflects the European Commission’s Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market.