The Nexa Center for Internet and Society, an interdisciplinary research center based at the Polytechnic of Turin, has recently published its observations on the Italian Communication Authority’s (AGCOM) regulatory proposal regarding online copyright enforcement.
The proposal is primarily intended to vest AGCOM with new administrative copyright enforcement powers. AGCOM would like to set up a system in which online copyright enforcement is done through administrative procedures, rather than civil or criminal actions. Additionally, the proposed enforcement system would not target direct infringers but rather Internet Service Providers (ISPs). Upon notice of alleged infringement, AGCOM may order the ISPs to selectively remove the infringing digital works, disable access to those works, or automatically redirect the users to a courtesy webpage. In case of especially serious instances of infringement, the proposal provides for an expedited procedure that drastically reduces the timeframe in which the alleged infringers and ISPs may respond to the allegations and subsequently take down the materials.
The Nexa Center has reacted to the AGCOM Proposal by means of a set of observations, authored by the co-directors of the center, Professor Marco Ricolfi and Professor Juan Carlos De Martin, and three fellows of the Center, Carlo Blengino, Alessandro Cogo, and Federico Morando. The Nexa Center has highlighted problems with the proposed regulation.
First, the AGCOM regulation may be inconsistent with initiatives which are under discussion at the European level, namely those described in the EU Commission Staff Working Document “E-commerce Action Plan 2012-2015. State of Play 2013.” The Commission specifically prioritizes tackling excessive fragmentation of notice-and-take down procedures in European jurisdictions. This fragmentation in turn leads to a high level of legal uncertainty that makes Europe an uneasy business environment for intermediaries. As Nexa noted, “the adoption of the proposed AGCOM regulatory scheme would increase this fragmentation and legal uncertainty.”
Second, the Nexa Center stresses that at both the European and national level, legislatures have expressly reserved to judicial authorities the power to intervene against intermediaries whose services have been used to infringe copyright and related rights. In this respect, judicial authorities are better positioned than administrative authorities to protect the fundamental rights of all the involved parties due to the procedural guarantees and independency of the judicial review.
Third, the Nexa Center fully endorses the concerns of the UN special rapporteur Frank La Rue in connection to the promotion and protection of the right to freedom of opinion and expression online. In a UN report, La Rue noted that “given that intermediaries may still be held financially or in some cases criminally liable if they do not remove content upon receipt of notification by users regarding unlawful content, they are inclined to err on the side of safety by over-censoring potentially illegal content.” The Nexa Center observes that the preoccupation of La Rue becomes a certainty in case of an administrative authority issuing an order as a result of a non-adversarial procedure that does not entail participation from the intermediaries as well as the users.
Finally, the Nexa Center restated an argument that has been raised since AGCOM has proposed its first regulatory scheme in 2011. AGCOM lacks in fact the power to set up the proposed copyright enforcement system as the legislature has not entrusted AGCOM with this extent of enforcement power.
The public consultation on AGCOM regulatory scheme is now coming to an end and a final decision on the adoption of the proposal is expected in the next couple of months. Taking into consideration the results of the public consultation, AGCOM will have the final word on whether to implement the proposal. Despites many critical views, AGCOM seems very much inclined to strongly pursue the adoption of the proposed measures.