AGCOM and copyright protection: unconstitutional profiles and operative practice

To defend your own copyright has become easier as from 31 March 2014, thanks to the Regulations on the matter of copyright protection on the electronic communication networks adopted by the Authority for Communication Guarantees of Italy (AGCOM). By filing a specific petition to the Authority for Communication Guarantees it is possible to obtain in a few days the removal of the contents that violate your own copyright or, in the case of massive violation, the black out of the website in which such contents are published.
Digital works are the object of such regulations, that is audio-visual, literary, photographic works, including the applicative programs and the operative systems diffused on electronic tele-communication networks and audio-visual or radio broadcast services or television or radio broadcast programs. To access to such a protection it is enough to show the ownership of the relative copyright and to provide proof of the violation through screen shots in which the violated works are represented. Once the petition is received the Authority for Communication Guarantees verifies if it complies with all the formal requirements of acceptability (procedural conformity to the Regulations), prosecutability (absence of a pending judicial proceeding) and admissibility (inclusion of the case in the field of practicality of the Regulations) and if the petition is not clearly ungrounded. Once such verifications have been carried out, the Authority for Communication Guarantees can decide to archive the proceeding administratively or can initiate a preliminary investigation, which takes place in the cross-examination of the parties, aimed at verifying the subsistence of the claimed violation.
The proceeding can terminate with the withdrawal of the petition, with the spontaneous adaptation, with the dismissal – if the violation has been considered non-existent – or with the issuance of an order addressed to the services providers each time identified, having as its object the selective removal of the work that violates copyright or the disabling of the access to the site that diffuses it. The recipient of the notification has a term of 3 days to obey, otherwise the sanction is imposed and the police is informed pursuant to art. 182-ter of the Copyright Law (LDA). Several are the disabling provisions of the access to sites already published on the Authority for Communication Guarantees’ site to which the Internet Providers Services, each time involved, have to adequate to. The new regulations are therefore fully applied and a specific Internet site is active in which how to protect copyright is explained ( From their first emanation, the Regulations have been, however, strongly criticized by legal practitioners, to the extent that some consumers associations have raised an issue of constitutional legitimacy considered ungrounded by the Regional Administrative Tribunal (TAR) of Lazio in its decision of 26.09.2014, therefore it has been taken under consideration by the Court. The associations claim, further, that «AGCOM has not at all the power to discipline administrative repressive interventions in a matter that the law, and before it the Constitution and the European law, reserve to the knowledge of the judge to protect the freedom of expression and of economic competition».

The only thing to do is to wait the decision of the Constitutional Court, until which the Authority for Communication Guarantees will continue to apply the Regulations.