Conference Report: “Internet and Copyright Law in the European Perspective. The Digital Single Market Copyright” – Milan, 4-5 November 2015

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On November 4th and 5th 2015 the Italian Judge Permanent Training Program for the Court of Milan (Hon. Francesca Fiecconi), with the collaboration of AIPPI Italian Group (Ms Renata Righetti, Avv.ti Giorgio Mondini, Simona Lavagnini, Fabrizio Sanna) and Franzosi Law Firm (with a team composed by Prof. Avv. Mario Franzosi, Avv.ti Gianluca Campus and Anna Maria Stein), organized in the Aula Magna of the Court of Milan a Congress for practitioners and academics from all over Europe aimed at discussing the most recent evolutions in the copyright law, taking into consideration the reform proposals indicated by the Europen Commission in the Digital Single Market Strategy for Europe.

The introduction of communications via Internet and the wide use of digital contents have dramatically demonstrated that most of the national copyright laws need to be re-evaluated and that the borders between communication, distribution and reproduction rights should be reviewed taking into consideration needs and structure of digital economy. The Digital Single Market Strategy for Europe highlights that the reform of copyright law plays an important role in achieving the goals indicated by President Jean-Claude Juncker.

EU legislative proposals for a reform of the copyright regime are expected at the end of 2015 and early 2016. This made the Congress a strategic occasion for information and discussion, a thinking arena, with the purpose of comparing national approaches on copyright issues, looking to a European view.

The Congress has been organized in three sessions, dedicated respectively to: (1) Distribution of digital contents on the internet; (2) Copyright infringements on the internet and the enforcement of rights; (3) Collective rights management in the digital era. Each session has been followed by a Panel Discussion dedicated to academics, judges, lawyers, technicians, collective rights managers and in-house lawyers.

Have joined the Congress, among others, Judges specialized in IP matters (Hon. Marina Tavassi, Amedeo Santosuosso, Francesca Fiecconi, Francesco Cajani, Giovanni Canzio and Roberto Bichi) the European Commission, the World Intellectual Property Organization, the Max Planck Institute (Munich), the Institute for Information Law (IviR) of the University of Amsterdam, the Italian Authorities for Communications (AGCOM) and for Competition (AGCM), the Universities Milan Bicocca, Milan Bocconi, Ferrara, Washington, the collecting societies SIAE, Nuova Imaie, SCF, IFPI and Google, Sky Italia, Mediaset, V-Nova, Italiaonline, Sinapsi. The Congress Proceedings will be in English and in Italian and will published in 2016 both in electronic form and in paper form with Aracne Editrice in the book collection “Law and Policy of New Media”, directed by Prof. Oreste Pollicino.

Speeches and Panel discussion focused on the evolution of the market of digital contents that requires copyright rules fitting the purpose of enabling better cross-border transactions, at least at European level and possibly at a worldwide level. In detail the Speakers analyzed the core actions indicated in Digital Single Market Strategy. Mr Marco Giorello (Deputy Director of the Copyright Unit of the DG Connect – European Commission) has introduced the legal framework and the roadmap for the implementation of the Digital Single Market Strategy for Europe (“DSMS”). The DSMS could have a huge impact on the reform of copyright law at a European level. It is anyway still matter of discussion which direction should take this reform.

For Prof. Mario Franzosi (University of Washington) the entire regime of copyright should change in order to face the challenges of the digital era. If the regime does not change, it could perish. Prof. Vincenzo Franceschelli (University of Milan Bicocca) has highlighted that is of the utmost importance to balance the right to economic exploitation of copyrighted materials with the right to private use of the same materials. Without such balance also the review of the Infosoc Directive (included in the DSMS) could lead to a “payable information society”. Also Hon. Vittorio Ragonesi (Italian Supreme Court – Legal Advisor Italian Foreign Office) suggested that the selection of conducts that constitute copyright infringement plays an important role. A possible balance could be found at the level of the exceptions to exclusive rights on copyrighted materials.

Other Speakers from European countries suggested possible ways for modernizing copyright law. For Prof. Bernt Hugenholtz (Institute for Information Law, Universiteit van Amsterdam) despite 25 years of copyright harmonization at a EU level, territoriality of copyright is left mostly intact and copyright protection is limited to national borders. An effective response to territoriality could be the review of the Sat/Cab Directive and the extension of the satellite broadcasting rules to Internet. On the other hand Prof. Dr. Michael Lehmann (Max Planck Institut Munich) analyzed the definition of Digital Contents in the Consumer Rights Directive and the recent ECJ case law on used software (Usedsoft case) and realized that the ECJ-decision is valid only for software: interprets the Software Directive. But at the time of the Software Directive every on-line activity was classified as a service. In the digital era we must treat on-line and off-line delivery of all types of “digital contents” as equal.

With reference to the topic of copyright infringements on the internet and the enforcement of rights, Hon. Francesco Cajani (Public Prosecutor – Pool for Cybercrime of the Court of Milan) has gone through the Google-Vividown case law in Italy in 2010, highlighting that the interpretation of the Public Prosecutor’s Office of Milan with reference to the liability of the ISP for managing personal data has been essentially confirmed in recent years by the case law of the European Court of Justice (C-131/12 Mario Costeja Gonzalese e AEPD Vs Google Spain e Google Inc.). Mr Giorgio Greppi (Italian Communication Authority – AGCOM) has reconstructed the legal basis for AGCOM power of control on on-line copyright infringements in the Italian legal system. Since 31st March 2014 the Regulation is in force in Italy and AGCOM has already managed 380 claims raised by copyright holders. But Mr Thomas Dillon (Counsellor, BRIP Division, WIPO) has remebered the different interpretations raised by national courts on the extent of liability of ISPs. National courts implement the copyright laws in divergent ways, in particular with regard to injunctions against intermediaries.  Such orders (and their refusal) may certainly have cross-border consequences. The Digital Single Market Strategy for Europe should face the challenge of overcoming such fragmentation among national approaches.

Also the collective rights management is a core topic for the digital era. Hon. Gabriella Muscolo (Italian Competion Authority – AGCM) considers that antitrust rules and an harmonized legislative framework are complementary means for implementing an effective digital single market of collective rights. The current scenario underlines a contrast between: (i) the request by the users of access to digital contents anytime and anywhere; (ii) the principle of territoriality of copyright and the complexity in copyright clearance. In the light of the above, an efficient and transparent system of collective rights management at a European level could represent a solution for implementing cross-border licensing and for reducing transaction costs.

Ms Stefania Ercolani (SIAE – Director of Multimediality Department) has indicated that also historical factors impacted the area of collective rights management. In Italy there is a dichotomy between the collective management of copyright and the collective management of neighbouring rights (only for the latter the Italian legislature has introduced a certain level of competition). It will be interesting to verify how the implementation of the Collective Rights Management Directive could impact both sectors.

 

P.S. a long form of this Conference Report will be published in the Journal of European Consumer and Market Law (December 2015)

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