AUTHORITY RESPONSABILITY IN COPYRIGHT PROTECTION ACTIVITY ON
ELECTRONIC COMMUNICATIONS NETWORKS: INDEPENDENT CONSULTATION
independent draft of AGCOM original text featured by Valter Conti
. Premise
Digital content is a key element in the development of the European single market: the spread access to broadband Internet and the development of advanced mobile networks, with the possibility of transform any type of digital content, and process it privately by individual users, faces continuously new cultural perspectives for consumers and new opportunities to develop a democatic and sustainable content industry.
At Community level, the digital single market is considered the "fifth freedom", and its development is considered a priority. Moreover, the ICT sector represents 5% of GDP Community, each day there are more than 250 millions of Internet users and is estimated that auntil 2020 many digital content and applications provided by users will be deployed, evaluated and funded through Internet.
However, even today 30% of EU citizens did not never used the Internet, the number of downloads of files music downloads is ¼ than the United States, the penetration rate of the fiber optic only 1% ( against 2% in the U.S., 12% in Japan and 15% in South Korea) the EU is spending on ICT research and development the 40% of corresponding expenditure in the U.S.
The Authority has in recent annual reports repeatedly expressed the view that underestimate the potential of the digital market eans losing a unique opportunity to economic and social development: the access to the media content stimulates the demand for transmission capacity and this in the same time encourages investment on next generation networks and allows both a orderly and democratic content development.
The launch of NGN networks, in turn, promotes the creation of innovative services that will be developed on these networks (web 2.0, web 3.0 etc.).
Among the stimuli to the spread of the digital economy plays an important role the presence of copyright.
Rules and annexed rights with an appropriate technological development and engagement of those rights exercice using of contents by users.
The criticality of the current regulatory framework on copyright in Italy stems from the fact that the ability to deliver and exchange content takes place in an economic regime of monopoly by a national public body (SIAE). The fact that, against a single licensee for collection of rights, the content is deployed without the legitimate owners are in a position to exercise significant any effective right to control personally and to perceive then the potential remuneration including those arising from the right then leads to the development of injury creativity and freedom of expression, therefore, to choices available to the public (as a public opinion and then how to protect natural competition) and consumers / users.
The rules of copyright would, in fact, on the one hand, protect freedom of expression and second, the guarantee of the right side of the privacy; allow an equitable remuneration to the author and equitable sharing of the remuneration of resale rights on the part of collective marks and CTM. This last aspect is, moreover, a fundamental principle of Community Communications electronic equipment inside the EU.
On the issue of copyright online, has developed In recent years a wide debate focused primarily on more effective measures to combat piracy. This approach, which has always been driven by the need to protect the 'author' before the "consumer" has led to the adoption in many countries, measures contrast based primarily on bans and sanctions.The practical effects of such a type of reaction in a monopoly like the Italian, however, are at least doubtful especially considering that the consumer can be an author who in turn radically changes the contents of the free access content available and then produces a new content totally different from the original work, though inspired by this. It would be appropriate to identify a pattern of adjustment that rests on the allocation of fair value also rights for reuse of those consumers who, having free access to online content, but simultaneously, redistribute, and recreate the same content supporting the authors of original works and in some cases creating "new" content otherwise impossible to be contemplated without the availability and free legal original works in the same network. It should also be in view that the Authority may settle. Disputes between the representative associations for the protection of consumers and users and by intermediaries that carry the supply of connectivity of the content on the web. In this sense, on the floor of a prudent and preventive action any government policy or intervention Piracy contrast can not be separated from the coeval promotion of measures aimed at fostering the provision legal content available to the public: policies that look to one of these two issues are doomed to fail or to produce further difficulties and inability to cope distortions of the market and competition, as demonstrates the ineffectiveness of technical counter-piracy and the current lack of incomes of social networking despite their exceptional spread. For more towards overcoming the logic of punitive-repressive requires that the action of public authorities do not regulators to take charge on an objective basis of identification and reconfiguration of the effective relocation of the current account in currency financial intermediaries approved by a reform accordingly. In this context, the legislature, with a series of subsequent regulatory action has identified the Authority for guarantees in communications as the person best suited for technical competence and institutional mission in Community dimension, to further the action of synthetic between the interests of authors, on the one hand and consumers / users on the other.
The Act also entrusts the Authority powers to terms of preventing too large, and assessment of offenses under framework that protects intellectual property. These leading powers also consider provide coordination with the ordinary moments of Local Bodies Chambers as guarantors of CTM and exercise, even Community of intellectual property rights.
2. The existing legal framework and the role of the Communications Authority
The first traces of regulations governing the Authority jurisdiction regarding the copyright cane from f the original warranty in the industry audiovisual (the Guarantor for broadcasting and Publishing), which was also entrusted with the task of supervising compliance by the the public broadcaster and private licensees for broadcasting, "the laws and conventions international telecommunications and use of intellectual works "(Article 15, paragraph 8 of Law No. 223/90, only recently repealed by art. 54, D. lgs. N. 177/2005, cd. Consolidated Broadcasting).
From that primitive normative element is registered, to the extent that worsened the problemc onsidered, a growing conferment of jurisdiction specific to this Authority, by law on August 18 2000, no 248, which operated the first formal investiture of this Administration, to the more Recent Legislative Decree 44/2010, better known as "Decree Romani ".
In that decree, the providers of Italian media services excluded from our jurisdiction are identified by the operators:
a) making use of an up-link satellite (uplink) located in Italy;
b) not using an up-link satellite located in Italy, but they use a Italian satellite capacity competence.
This exclusion has produced an ambiguity as to the civil and criminal liability of the operators if under the protection of copyright, you configurable limits on the simple case in mere production of the contents and clauses of responsibility for public utilities operating legally in Italy.
On the other hand, the Authority itself, given the delicacy and importance of legal potentially involved, it has decided to report to the Government and the Parliament the opportunity to a comprehensive review of rules on the rcopyright law that would otherwise be inappropriate for the technological and legal developments in the industry sector.
Valter Conti
