The path leading to the implementation of the Copyright Directive has been long and full of setbacks. Indeed, it was only on 6 August – two months after the deadline set by the Directive itself – that the Council of Ministers approved the draft Legislative Decree implementing the Directive, which is now once again being discussed by the Parliament.

One of the elements that has contributed to slowing down the legislative process of this new text is the objective it pursues, namely the rebalancing of the relationship between, on the one hand, the large digital platforms that disseminate and aggregate creative content and, on the other hand, the producers, authors and performers of such content.

From that perspective a number of innovations have been introduced, as listed below, which have given rise to much debate and concern:

  • Article 13: establishment of an impartial body to assist creators of audio-visual works in negotiating licensing agreements with video on demand service platforms (such as Netflix, Prime Video, Disney Plus, etc.). This therefore is an instrument for the protection of authors and their rights which aims solely at limiting the enormous bargaining power that digital platforms use to their advantage against those parties;
  • Article 14: free use of acts of reproduction of works of the visual arts that have entered the public domain because copyright protection has expired. Basically, if a work of the visual arts, such as a painting or a film, falls into the public domain and is reproduced in a video or in any other form of communication by a third party, the latter cannot claim any right over such act of reproduction, unless it constitutes an autonomous intellectual creation of the author and can be protected as such;
  • Article 15: introduction of a new related right in favour of publishers of journalistic publications for which they must be remunerated for the online exploitation (reproduction and making available to the public) of these publications by digital platforms, such as Google, Bing, Yahoo; the same article also provides for the obligation of the same publishers to pay a reasonable share of the revenues generated in favour of the authors of the publications. Such fair remuneration has given rise to a number of uncertainties, since the decree in question, instead of limiting itself to providing for the right of publishers to negotiate a remuneration (as provided for in the text of the Directive), has provided for the obligation to negotiate a fair remuneration. Moreover, if the parties in question are unable to agree on this point, AGCOM (the Italian Communications Authority) will act as “referee” in identifying such remuneration;
  • Article 17: obligation of online content sharing services, such as Facebook, YouTube, Telegram, to obtain the authorization from rights holders to share protected content on their platforms. Sharing services therefore will be directly liable for copyright infringements committed via their platforms, unless they can prove that they have obtained the authorization from the rights holders to disseminate protected works or at least have made “best efforts” to obtain such authorization or to remove unauthorised content.

The use of the term “best efforts” to assess whether or not the conduct of the platforms may be sanctionable will certainly create several problems, especially of an interpretative nature; for the time being, this expression has been translated in the decree under review as the obligation to adopt the “maximum efforts”, thus favouring an extensive and quantitative interpretation that imposes and therefore requires greater control by the platforms;

  • Article 17: introduction of complaint and fast-track redress mechanisms for users in the event of disputes that concern content removal or account disabling by platforms, as well as information requirements for platforms concerning the conditions and terms of removal of uploaded content.

The innovations listed above undoubtedly constitute a major challenge because of the economic interests that are involved. The objective of the directive certainly is a bold one in that it seeks to change the rules of the game in order to redistribute the value generated by the activity of the platforms and “give it back” to the creators and authors of the contents.

In that regard, the obligation for publishers to reach agreements with large information aggregation platforms such as Google for the purpose of obtaining remuneration for the use of their publications is an historic legislative change, albeit one that risks cementing the predominance of those publishing houses that have sufficient resources to engage in such negotiations. This imbalance is even more evident if one considers that art. 1, para I, lett. b (8) of the decree includes, among the criteria for quantifying this remuneration, the higher number of views or the reputation of the publisher itself.

Equally relevant is the provision of a “maximum effort” to be borne by the sharing platforms in removing illegal content uploaded by users. However, the choice of the Italian legislator to prefer the quantitative criterion, which seems to refer to the amount and pervasiveness of the checks carried out, introduces a potential risk of indiscriminate removal of content by extremely “sensitive” detection algorithms, which certainly contrasts with one of the stated objectives of the directive, namely, to preserve the right of criticism and satire of users. On the other hand, a “qualitative” interpretation of this obligation could have been preferred, namely a “better effort” on the part of the platforms, one that would be proportionate to the seriousness of the violations and their diffusion.

The decision by the Italian Government to depart in part from the text – and from the spirit – of the directive has been the subject of a lengthy debate, to the extent that it has raised in more than one person the doubt of an excess of delegated powers or of so-called “gold plating”, i.e. the practice whereby the national legislator goes beyond what is required by European legislation, while formally remaining within the perimeter of its own discretion.

Hopefully, in the final version of the decree the Italian legislator will pay more attention to the aim of harmonisation that all European directives pursue, which in this case requires the adoption and definition of a common “European approach” to digital copyright in the coming years. This approach will in fact allow the individual countries of the Union to effectively interact with the so-called “web giants” and finally take a firm stance against them (which so far has been completely lacking).