Italy's Council of Ministers adopts the European Copyright Directive without major changes from the original text

By Emmanuel Legrand

The Italian government's Council of Ministers adopted the European Union's Copyright Directive with a text close to the original legislation. European Union member states were expected to transpose the Directive voted in 2019 before June 7, 2021, but so far only a handful have done so.

  Enzo Mazza, CEO of Italy's record labels' trade group FIMI, said the adoption was "great news" for rights holders. Mazza praised the government for the adoption of a text in line with the EU Directive. "The new legislation will improve the digital transition and help the content industry to exploit the repertoire on online platforms," said Mazza (pictured, below).

  Mazza wrote in a long essay that the new legislation will rebalance the relationship between online platforms and the music sector, with more adequate remuneration and a better definition of the responsibility of the platforms.

Adherence to the EU text

   The text, approved by the Council of Ministers, will now be sent to Parliament for a vote. Mazza says the text "contains significant adjustments to the Italian legislation, which has already been the subject of significant updates in recent years, but never of this magnitude." 

  Mazza said the Italian Government has generally chosen "to follow the criterion of adherence to the EU text." On the controversial Article 17, which introduces the liability of internet service providers for the unlicensed content circulating on their platforms, Mazza writes that the Italian government has chosen to introduce a dedicated title in the law, defining the characteristics of the services and establishing their related responsibilities.  

  Notes Mazza: "In particular, according to the legislative decree, an online content sharing service provider is understood to be an information society service provider who cumulatively has the following requirements: a) it has as its main purpose, or among its main purposes, to store and give access to the public to large quantities of works or other materials protected by copyright; b) the works or other protected materials are uploaded by its users; c) the works or other protected materials are organised for the purpose of directly or indirectly benefiting from them."

Responsibility for content uploaded

  These providers of online content are distinct from those that give access to non-profit online encyclopedias, non-profit educational or scientific repertoires, as well as open source software development and sharing platforms.

  With regard to liability, in line with the EU regulation, Mazza explains that Italian law states that online platforms allowing for user-generated content, in the absence of authorisation from rights holders, are responsible for unauthorised communication to the public and making available to the public works and other materials protected by copyright, unless they can demonstrate that they have cumulatively satisfied the following conditions define by the law, in particular having made "best efforts" to identify rights holders and obtain licenses. 

  "In any case, the online content-sharing service provider who practices or facilitates copyright piracy is not exempt from liability," writes Mazza. 

A new season for rights holders

  The Italian transposition also establishes rules relating to the remuneration of authors and artists. The Directive establishes the notion of obligation of transparency from digital service providers, in particular providing authors, composers and performers with updated information on the exploitation of their works from licenses. The Italian law states that failure to notify can result in the application of a pecuniary administrative penalty of up to 1% of turnover. 

  Mazza concludes by analysing the impact the legislation is likely to have on the music sector. For him, the key point will be to see if the Directive will result in increasing revenues from UGC platforms, now that they have an obligation to licenses content. This should help rebalance the output from platforms like YouTube, which generated 22.5 million last year, compared to 104m from the streaming subscription sector. 

  "With the new legislation, a new season opens where a rebalancing is expected in the music sector, with adequate remuneration proportionate to the revenues of the high tech platforms and a more defined responsibility of them in fighting illegal content," writes Mazza.