The EU Copyright Directive 2019/790 was implemented in Italy with Legislative Decree 177/2021 which makes several amendments to Law 633/1941 on copyright (LDA). The new rules come into effect from December 12, 2021.
The purpose of this reform is on the one hand the modernization of copyright in consideration of the massive use of protected works online and on content sharing platforms: on the other hand, the strengthening of the rights of authors, artists and performers and. the extension of the protection to new categories of beneficiaries.
Please find below the main innovations introduced.
1.New rights for publishers of journalistic publications (art 43 bis LDA)
Publishers are granted the exclusive rights to authorize the reproduction and online communication of their journalistic publications by content management platforms, media monitoring companies and press reviews.
Periodical publications for scientific or academic purposes are not considered to be journalistic publications.
Private or non-commercial uses, hyperlinks or the use of single words or very short extracts from journalistic publications are not subject to prior authorization.
A right to fair remuneration is also recognized for the online use of publications. This remuneration will be determined by agreement between publishers and online platforms with reference to several criteria established by AGCOM regulation. In the absence of an agreement between the parties for the determination of the remuneration, it will be possible to contact AGCOM. The right to fair compensation expires 2 years after the publication of the work.
2. New rights holders in the film industry
The new art. 44 of the LDA extends the title of co-author of the cinematographic work to the translator (in addition to the author of the subject, the author of the screenplay, the author of the music and the artistic director already included in the same article).
The dubbers are instead included among the performers indicated in article 80 of the LDA, thus becoming holders of a related right already recognized to actors, singers, musicians and dancers.
The rights of film industry professionals are also strengthened with the amendment of the fourth paragraph of art. 46 and first paragraph of art. 46 bis of the LDA.
The new fourth paragraph of art. 46 of the LDA recognizes the authors of the subject and of the screenplay, the artistic director, the dialogue adapters, the dubbing directors, the translators, the performers, including the dubbers, an inalienable right to receive an additional percentage remuneration. on the proceeds deriving from the public screenings of the work. Whereas, on the other hand, the previous legislative version allowed for the waiver of this remuneration and made its collectability subject to the achievement of a sum of receipts to be contractually agreed with the producer.
The new first paragraph of Article 46 bis of the LDA establishes for the authors of cinematographic works a right to an adequate and proportionate remuneration, payable by the broadcasters, for each communication to the public of the work, in the event of the transfer of the right of diffusion to the producer.
These fees are established on the basis of industry agreements; in the absence of an agreement, they will be identified by AGCOM with regulation.
3. New rules for sharing content on online platforms (art 102 sexies - 102 decies)
Online content sharing service providers (e.g. social networks and video sharing platforms) assume new obligations and responsibilities.
Such service providers will need to obtain permission from copyright holders to be able to publish content, including that posted by their users with non-profit purposes. Failing this, the platform will be held responsible for any violations reported by the right holder, unless it proves one of the following circumstances:
- having made the utmost efforts to obtain authorization according to the high standards of professional diligence in the sector;
- having promptly disabled access or removed the content from their site, following a reasoned and detailed report by the rights holders.
For the exemption of liability, platforms with an average number of unique monthly visitors referring to the previous year exceeding 5 million must also demonstrate that they have made every effort to prevent the future uploading of unauthorized works.
It remains possible for users to upload content "generated by them" on the platforms, even without the prior authorization of the rights holders, when the publication takes place for the purpose of:
- quotation, criticism or review; or
-parody, caricature or pastiche.
The platforms will have to inform their users of this possibility through their terms and conditions of the service.
The platforms will also have to provide mechanisms for online notification and resolution of disputes on copyright infringement. The decisions of the platform relating to the blocking or removal of content in alleged violation of copyright rules may be challenged with an appeal to AGCOM or to the judicial authority.
The new regulation does not apply to certain categories of services such as:
- on-line encyclopedias, didactic or scientific non-profit repertoires;
- "open source" software development and sharing platforms.
- business-to-business cloud service providers or cloud services for personal use.
4. Obligation to report on the exploitation of the rights on the transferred or licensed works
The new paragraph 2 of article 107 of the LDA introduces for authors, artists and performers who license or transfer their exclusive rights for the exploitation of their works or other protected materials a right to an adequate and proportionate remuneration to the value of the rights licensed or transferred, as well as commensurate with the revenues deriving from their exploitation.
Any contrary contractual provision is void and a flat-rate remuneration is allowed for the author or artist when his contribution to the work or execution is merely accessory and the costs of the calculation operations are disproportionate to the purpose of remuneration.
The new article 110 quater of the LDA introduces an obligation for the transferees or licensees of the rights to report every six months on the methods of exploitation of the works and on the revenues generated by such exploitation (including advertising and merchandising).
AGCOM supervises compliance with this requirement and in case of violation applies a pecuniary administrative sanction up to 1% of the turnover achieved in the last financial year closed prior to notification of the violation. The benefit of the reduced payment provided for by article 16 of the law of 24 November 1981, n. 689 is exluded. In any case, the non-fulfillment of the reporting obligation constitutes a legal presumption of inadequacy of the remuneration in favor of the holders of the rights.
5. The right to terminate the contract in the event of failure to exploit the work.
The new article 110 septies of the LDA provides for the possibility for the author, artist and performer to act for the termination of the license or transfer agreement or to revoke the exclusivity, in case of non-exploitation of the work within the term established by the contract, in any case not exceeding 5 years or 2 years following the availability of the work by the publisher or producer.
The termination of the contract or the revocation of the exclusivity is subject to a prior notice and assignment of a reasonable term for fulfillment.
Any contrary contractual provision is void, unless provided for by a collective agreement.
Avv. Lifang Dong and Avv. Chiara Civitelli
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