New European Law in force. In the struggle against online piracy, the power of the AGCOM is strengthening

The European Law 2017 (Law no. 167 of November 20, 2017) entered into force on December 12, 2017 introduced important news in reference to the online infringements’ repression concerning contents protected by copyright.

The new regulation, adopted to effect the European directives no.2001/29/CE – on the harmonization of certain aspects of copyright and of the related rights in the Information society – and no. 2004/48/CE – on the respect of the intellectual property rights -, foresees in art.2 the attribution of new and more incisive repressive powers held to the AGCOM (the Italian Authority for Communications Guarantees).

The article provides that:

“(…)the Italian Authority for Communications Guarantees, at the owner’s right request, can provisionally order the service providers of the Information society to stop immediately the infringements to copyright and related rights if, after a brief analysis of the facts, these violations turn out to be true and there is the treat of an imminent prejudice, which can be irreparable for the owner’s right.
2. The regulation of the Authority disciplines how the protective measure at paragraph 1 is adopted and communicated to the parts as well as the subjects who can claim against the measure itself, the deadline to submit a claim and the procedure by which the Authority has to take its final decision.
3. By the regulation at paragraph 2, the Authority identifies the measures adapt to prevent the reiteration of the violations already ascertained.”

The new provision falls into the delicate and discussed question of the ISP (Internet Service Provider)’s responsibility.

The directive on electronic commerce no. 2000/31/CE, accepted by our regulation with the Law Decree no. 70/2003 stated the irresponsibility principle of the service provider and that the latter has no general obligation to monitor the uploaded contents.

The AGCOM has already extensive repressive powers and it can adopt specific measures at request of the interested ones to order to service provider the removal of illicit contents from their platforms.

In the new system, by an extension of power, the AGCOM will be the Authority contrasting online piracy and it will be also able to issue protective measure against internet service providers without the counterparty’s consent.

In particular, the new reform creates the so-called “Notice and Stay Down” system. This means that to each warring referred to a violation of intellectual property rights will correspond the ISP duty to prevent future reiterations of the same illicit by a positive action.

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