Copyright Directive: green light from the Italian CdM to the transposition legislative decree. The main changes of the reform  

After the expiration of the transposition deadline set for June 7, 2021 (with consequent start of the infringement procedure by the European Commission), on November 4th the Italian Council of Ministers approved definitely the legislative decree that transposes the 2019/790 EU Directive on copyright and related rights in the digital single market (the so-called Copyright Directive).

The aim of the legislation is to strengthen the protection granted to authors and artists by introducing transparent mechanisms that are coherent with the digital age, which is more and more characterized by online and cross-border accesses, as well as by the use in digital platforms of copyright protected contents.

The main innovations of the Copyright Directive

Waiting for the publication of the final version of the text of the decree, from which it will be possible to know the terms and specific methods of implementation of the legislation at national level, here below is a brief overview of the main changes introduced by the Copyright Directive

Prevision of the responsibility of online content-sharing service providers in case of copyright infringement of content uploaded by users, unless there is evidence of the maximum efforts made to obtain the authorization from the respective owners. Therefore:

  • Digital platform (including social networks) are required to obtain the authorization, through license, from the respective rightholders, if they allow the access to copyright protected work uploaded by their users;
  • This is a form of liability limited to large companies (so-called “Web Giants”) that, as a matter of facts, does not apply to start-up companies or companies with a turnover below 10 million;
  • The so-called “Meme” or any content created by users for parodic, caricature or pastiche purposes, as well as quotation, criticism or review purposes, do not require an authorization.

Strengthening the protection granted to authors and performers (so called “AIE) through the introduction of a series of instruments such as:

  • A principle of a remuneration proportionated to the potential or actual value of the licensed or transferred rights, as well as appropriate to the revenues deriving from the exploitation of the works
  • The request for transparency on the exploitation of the works by the subjects to whom rights have been licensed towards transferee authors and performers;
  • Contractual adjustment mechanism according to which authors and performers have right to an additional remuneration if the fee originally agreed turns out to be proportionally lower than the revenues generated from the exploitation of the works;
  • Right to revoke the exclusive license or to act for the termination of the contract in case there is no exploitation of the work;
  • Equivalence between theatrical shows on streaming and audiovisual works with a consequent extension of the related protection;
  • Widening of the professionals rightsholders, such as the dubbing director, the dubber, the dialogue adapter and the translator;
  • Specific hypothesis of lump sum as remuneration of authors and performers for the exploitation of their works.

Specific regulation of journalistic content published online through:

  • Recognition to online publisher of a new related right, as a right to fair remuneration for the publication of journalistic works by information society services providers, such as news aggregators (for example Google News);
  • Recognition to the authors of press content of a share of the revenues attributed to the publishers. Such rights are not recognized in case of private or non-commercial uses, or in case of hypertextual links or in the use of single words or “snippet” (very brief extracts).

Widening of the exception to copyright (at the moment provided for teaching and research purposes and cultural heritage conservation) and, consequently, a higher possibility of using content protected by copyright.

Centrality of the role of the Italian Authority for Communications Guarantees (AGCOM):

  • It sends to the “Camere” a report on the application of the new framework, as far as it is concerned, after two years of its entry into force;
  • It defines, in case of no agreement between the parties, the scale of the due remuneration

Other provisions:

  • Strengthening of the assisted negotiation mechanism according to which, in case of difficulties in the conclusion of a license agreement for the exploitation of audiovisual works on video on demand services, each party can ask for the assistance of the AGCOM, which will indicate the appropriate negotiation settlements also with reference to the quantification of the remuneration.
  • Collective licensing with extended effect by means of which collecting societies are legitimized to manage the rights of stateless or non-identified subjects;
  • Specific regulation for the exploitation of out-of-commerce works, such as unavailable works, in any version or medium, through the ordinary commercial channels within the European Union for at least 10 years;
  • In the case of the extraction of text and data for scientific research purposes, the research organisms can freely disclose only the results of the research and not the material used for the research.