The legislative decree proposal for the transposition of the European Copyright Directive (Eu 2019/790) presented by the Ministry of Culture, “contains highly critical aspects that appear to be in contrast with the principles of the Directive itself, disregarding the Guidelines published by the European Commission, which they aim to harmonize national copyright laws at European level, with a view to creating the digital single market “. This was denounced by Confindustria Cultura Digitale, Anitec-Assinform and Asstel, who explained that they expressed this opinion on the occasion of the hearings promoted by the Mic together with the Publishing Department of the Presidency of the Council of Ministers. “Nor is the approach to which the ministerial text seems to be inspired, which does not see in the adoption of balanced contractual solutions, the result of free agreements between the parties, the main road for the strengthening of copyright without prejudice. innovation “.
On the merits, explained by Confindustria Digitale, “with article 5 of the decree which transposes article 15 of the Directive concerning the protection of journalistic publications in case of online use, the ministerial proposal introduces an obligation to conclude an agreement contractual agreement between service providers and publishers (also in collective form) for the online use of publications and in the event of no agreement, provides for the intervention of AGCOM to establish which of the offers formulated is the most equitable or, if it deems no offer suitable, determine ex officio the fair remuneration “. For Confindustria Digitale, “the text of the Directive is thus denied, which does not impose any obligation to contract as a form of protection of the new related law, nor does it introduce forms of fair compensation, but above all the constitutional principle of freedom of economic initiative is disregarded, from which the negotiating freedom of the parties derives, at the basis of the market economy “.
As for the transposition of art. 17, continues the note, “Article 2 of the decree confirms the problems expressed several times with regard, on the one hand, to the Italian translation of the legal concept of best efforts contained in the Directive, and on the other to maintaining a balance between providers of services and rights holders. The translation of best effort taken from the decree is that of “maximum efforts”. But on this point, both the Commission and the interpretative appeals carried out by other member states have highlighted how this maximalist translation is not consistent with the original and “innovative” one of the Commission. The correct translation of best effort is “maximum efforts possible”, which means asking the platforms to undertake to protect copyright through a proportionate, reasonable and diligent behavior “.
Hence the requests: “Confindustria Digitale, Anitec-Assinform and Asstel – the associations write – are well aware of the efforts made by the government and believe that any compromise solution can only be inspired by European law, constitutional principles and the protection of freedom A regulatory intervention that goes in the other direction would have the effect of discouraging business investments, compromising the integration of the European single market and the construction of a European digital industry that now more than ever needs certainties to deal with the challenges posed by the digital transition. The hope – concludes the note – is that after the hearing the text will be rebalanced also through the application of the indications contained in the European Commission’s Guidelines published last June “.
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