Copyright decree: the aims, the Agcm opinion and the political debate

Copyright decree: the aims, the Agcm opinion and the political debate

The Antitrust opinion on the draft decree implementing the EU copyright directive, the debate among experts and the first political reactions (Fratelli d'Italia criticizes the Agcm)

Parliament is examining a rule that could bring about a small revolution in the world of publishing and in its relationship with the web. The committees of the two branches of Parliament have begun examining the legislative decree scheme that transposes the European copyright directive.

The content of the directive

The Copyright Directive (EU directive 2019/790) strengthens the protection offered to copyright and related rights in the light of digital transformations . According to European regulations, the giants of the web must ensure that no copyrighted works circulate on the network for which they have not been able to obtain authorization from the rights holders. Furthermore, the Copyright Directive stipulates that publishers receive fair compensation from digital platforms for the online use of their journalistic publications.

Antitrust intervention: attention to competition and fair compensation

The Competition and Market Authority, in the meeting of 31 August 2021, expressed strong doubts regarding the decree now in Parliament. The doubts concern the possible damage to free competition and the introduction of fair compensation .

The restrictions on competition

Here are the three salient, conclusive passages of the opinion signed by Roberto Rustichelli, president of the Authority for the market and competition, sent to the presidents of the Chamber and Senate and to the president of the Council on the draft decree implementing the EU copyright directive. First: "The Authority believes that the transposition in Italy of the Copyright Directive currently presents significant competitive problems that could compromise the development of the markets relating to the brokerage of rights in the digital context". Second: “The forecasts indicated above outline an excessively managerial approach, with a pervasive, and often ineffective, intervention by the public authorities that does not encourage the deployment of correct negotiation dynamics and which, moreover, is a harbinger of significant and unjustified competitive discrimination. On the contrary, the spirit of the Copyright Directive requires the development of tools that favor the effective negotiation of rights, on the basis of the free exercise of the negotiating autonomy of the parties concerned and the respect for the principle of freedom of enterprise ”. Third: “The Authority hopes that the observations made above can be adequately taken into consideration in the context of the transposition process in progress”.

Federico Mollicone (group leader in the Publishing Committee – FDI): "Sartorial opinion from Antitrust"

Federico Mollicone , group leader in the Publishing Committee of Fratelli d'Italia is critical of the opinion of the Antitrust on competition regulated by article 15 of the directive (“Protection of journalistic publications in case of online use”). "The Antitrust opinion sent to the Government and Parliament on the legislative decree transposing the Copyright directive appears to be" tailor-made "as regards article 15, a" prejudice "apparently to protect small and medium-sized publishing companies but to in favor of digital platforms – writes the deputy in a note -. The provision introduces, in fact, also thanks to our agendas, a mandatory negotiation mechanism precisely for the main protection of small publishers. We do not wish there was a "hand" of some law firm that protects the interests of OTTs. "

The giants of the web and advertising stolen from the press

Computer platforms and social networks have progressively stolen increasing shares of advertising income from the press through the publication of articles or journalistic works. “The merciless figures of the collapse of print runs unequivocally testify to the gravity of the crisis – former commissioner Agcom Francesco Posteraro writes to Repubblica -. Ensuring that from now on publishers are paid an adequate portion of the profits generated by the dissemination of their publications on the internet is therefore necessary to ensure their survival, thus preventing the aggressive business model of platforms from compromising the most essential pillar of the pluralism of information.

Fair compensation: the risk that favors incumbents

The Antitrust Authority notes that the Copyright Law, in indicating the parameters for the definition of fair remuneration , provides for variables such as the duration of the activity and the importance of publishers, as well as the number of journalists employed. According to the Authority, these parameters do not help to quantify the contribution to the economic result of the content but " are instead suitable for determining improper discrimination against new entrants and smaller publishers, unjustifiably favoring incumbent publishers". Furthermore, the Antitrust requests that the decree be more precise in describing what are the "maximum efforts" that the service provider must put in place to obtain the necessary authorizations for the disclosure of the work and that among these is included "the actual involvement of active intermediation companies whose operations are already subject, by current legislation, to verification of compliance with extensive transparency obligations ".

The ratio of fair compensation and the role of Agcom

The Government has included in the transposition text of the Community directive presented to the Chambers a series of provisions aimed at protecting publishing companies. "It is envisaged, in particular, that the negotiations between the parties take place not only in a transparent manner and in compliance with the obligation of good faith, but also in the wake of the criteria for the determination of fair remuneration set out in broad lines in the outline of decree and that it will be up to Agcom to specify with specific regulations – says prof. Posteraro -. The same Authority may also be called upon to concretely determine the amount of the remuneration in the event of failure to agree between the parties, without prejudice to the faculty of each of them not to reach the stipulation of the contract in any case and to have recourse to the judicial authority at any time. .

The Trojan horse of snippets

The discipline under discussion, however, exempts the giants of the web from compensating publishers for the publication of snippets, or textual extracts that do not exempt from the use of journalistic publications. “The notion of snippets therefore risks remaining too vague, as such capable of giving rise to infinite disputes and interpretative readings that are anything but univocal – writes former commissioner Agcom Francesco Posteraro in an opinion for Repubblica -. A firmer anchor – and at the same time more consistent with the aims of the directive – could, if anything, be provided by a definition that qualifies them as extracts not susceptible to autonomous economic exploitation: if they must not give rise to compensation, it is because they cannot generate profits " .

Snippet: the Antitrust asks for more precision

The Antitrust Authority is also very critical on this point, according to which "the draft decree does not appear to provide an adequate definition of the concept of very short extracts, of fundamental importance for the distinction between the work that must be remunerated and its representation synthetic that does not benefit from protection ". The definition of snippet would be too “ generic and difficult to apply in practice, making it unsuitable for contributing to the certainty of the protection recognized by the Copyright Directive for publishers and authors. The notion of "very short extracts" should therefore be brought back within certain and defined parameters, usually used in the reference sector and immediately applicable, such as for example the number of characters / characters in the extract ".

This is a machine translation from Italian language of a post published on Start Magazine at the URL on Thu, 16 Sep 2021 13:30:08 +0000.