An online journal cannot publish “entertainment videos” absent the rightholder consent

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On October 5, 2016 the Court of Rome issued an interesting decision in a case involving Reti Televisive Italiane S.p.A. (“RTI”) – one of the main Italian private broadcaster – and Gruppo Editoriale L’Espresso S.p.A. (“Espresso”) – one of the main Italian publishers, which publishes amongst other, the online version of the national newspaper “La Repubblica” available at the URL www.repubblica.it (“Repubblica”).

1.       Facts of the case

Starting from 2012 in a specific section of Repubblica named “Video” were published several excerpts of RTI TV programs absent the latter authorization.  After an unsuccessfully cease and desist letter, RTI started a litigation vis-à-vis Espresso asking the Court of Rome to: i) ascertain the infringement of RTI copyright on said TV programs as well as the unfair competition carried out by Espresso; ii) ascertain the infringement on the RTI trademarks; iii) order Espresso to stop using RTI contents and order the same to remove from its servers all the RTI contents; iii) condemn Espresso to compensate the pecuniary damages suffered by RTI to be quantified in a sum not less than EUR4,669,500; iv) establish a penalty for each further infringement of RTI rights and for each day of delay in the enforcement of the decision; v) order the publication of the decision on main Italian newspaper.

Espresso appeared in the proceedings asking the Court to fully reject the RTI demands stressing, amongst other things, that the publication of the RTI videos on Repubblica were allowed by the exceptions and limitation to copyright provided also for journalistic activities under sections 65 subsequent of the Italian Copyright Law (Law of April 22, 1941 no. 633 as amended).

 

2.       Limitation and exceptions to copyright do not cover “Entertainment Videos”

After an extensive taking of evidence stage of the proceedings – which included also a court expert report to assess the pecuniary damages suffered by RTI – the Court partially upheld RTI’s claims.

Espresso was found liable for copyright infringement and parasitic unfair competition towards RTI. The Court condemned Espresso to pay RTI EUR250,000 for pecuniary damages and established a liquidated damages of EUR1,000 accruing for each further infringement of RTI rights and for each day of delay in the enforcement of the decision.  In addition, Espresso was condemned to reimburse the legal fees and expenses borne by RTI and to publish an excerpt of the decision on “Il Sole 24 Ore” and “Il Corriere della Sera” newspapers and on the homepage of Repubblica.

In the decision the Court firstly observes that the hosting provider defense set forth by sections 16 and 17 of the E-Commerce Decree (Legislative Decree no. 70 of April 9, 2003 implementing in Italy the E-Commerce EU Directive 2000/31/EC) is not applicable to Espresso in the provision of Repubblica.  Indeed, Espresso directly selects and manages the contents made available on Repubblica therefore it cannot be considered a hosting provider.

Furthermore the Court in evaluating the Espresso objections to the RTI demands highlights that the limitation and exceptions provided under Italian Copyright Law, that shall be interpreted in a restrictive way as clarified by the Italian and European case law on the matter, are not applicable to the activity carried out by Espresso.

Indeed, from one hand, the RTI videos published on Repubblica had an entertainment nature (not related to economic political or religious topics as requested by section 65 of the Italian Copyright Law) and from the other hand, Espresso made use of such video for an economic purpose.

According to the Court the above has been confirmed by the same Espresso that, in order to challenge the quantification of damages proposed by RTI, highlighted in the course of the proceedings that the advertising revenues collected in connection with said videos were equal to EUR17,000. In this respect the Court affirms that the existence of an economic purpose is relevant to exclude that in the case at hand Espresso by publishing the videos exercised the freedom of the press granted by the Italian Constitution.

This is the crucial point of the decision that it is further clarified by the Court when it observes that: “There is not a direct link between the use (unauthorized) of the RTI videos and the exercise of the journalistic activity by Espresso that, to make its editorial product more appealing from a commercial point of view, provides to its readers a service which is additional to the journalistic one.  The circumstance that the video are published in a separate sub-section of Repubblica confirms that the video service is separate from the informative activity carried out through the digital version of the newspaper “La Repubblica””.

 

3.       Conclusive Remarks

The above analyzed decision, which is still subject to appeal by Espresso, follows a decision on a similar subject matter issued by the Court of Justice of the European Union (reference is made to the decision of October 21, 2015 in case C-347/14) and it is the first decision on this specific issued in the Italian case law.

The decision is particularly relevant also because it concerns a common practice (i.e. the unauthorized use of broadcasters/third parties contents on the digital versions of newspapers).  In this respect only the time will reveal how such decision would influence the relationships between publishers and broadcaster (or producer of audiovisual contents) in the next future in connection with the exploitation of the relevant contents.

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