COPYRIGHT
An overview of Italian regulation on a private copying levy
Gilberto Cavagna di Gualdana of Andersen explores the regulation on the mandatory payment of a private copying levy in Italy.
The regulation on the compensations for the private reproduction for personal use of private copy was introduced in Italy by law no. 93 on February 5, 1992. The law provided for the first time an exception to the exclusive reproduction rights granted to authors, artists and producers, pursuant to the 1941 Italian Copyright Act (law no. 633).
According to this exception, the individual end-user can legally reproduce, for personal use only, “videograms and phonograms” (ie, make a private copy) on the condition that the rights owners are paid a remuneration.
This regulation was successively amended by legislative decree no. 68 in April 2003 (LD 68/2003), which implements the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society and of its related instruments which partially modifies the rules on “private copy”.
The decree amended the prior regulation and introduced new rules into the Italian Copyright Act, in particular the new articles 71-septies and 71-octies and paragraph three of article 182-bis, although the rules provided by LD 68/2003 were based on the same principles as the previous law 93/1992.
In May 2004, a new law, no. 128, was issued in modified paragraph four of article 71-septies, and introduced administrative fines for those who infringe the legal obligations.
Benefit to individuals
According to the current private copy regulation, individuals in Italy can benefit from an exception to the exclusive rights pertaining to authors, artists and producers, ie, make reproduction of private copy without the prior consent (licence) of the copyright owners. This was according to case C 470/14, Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA), Derechos de Autor de Medios Audiovisuales (DAMA), Visual Entidad de Gestión de Artistas Plásticos (VEGAP) v Administración del Estado, Asociación Multisectorial de Empresas de la Electrónica, las Tecnologías de la Información y la Comunicación, de las Telecomunicaciones y de los contenidos Digitales (Ametic) (2016).
“The law provided for the first time an exception to the exclusive reproduction rights granted to authors, artists and producers, pursuant to the 1941 Italian Copyright Act.”
Gilberto Cavagna di Gualdana
In that case, the Court of Justice of the European Union (CJEU) held that: “Legal persons are in any case excluded from benefiting from that exception and thus they are not entitled to make private copies without receiving prior authorisation from the rightsholders of the protected works or subject matter concerned.”
Conditional benefits
This benefit for individuals is conditional on the following: that the reproduction is made for personal use only, that no profit in generated and that it is not for direct or indirect commercial purposes. The reproduction must also come from lawful sources (in case C 435/12 ACI Adam BV and Others v Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie vergoedin [2014], the CJEU held that: “Article 5[2][b] of Directive 2001/29 must be interpreted as not covering the case of private copies made from an unlawful source”). The reproduction must also have been made using recording equipment and virgin carriers, for which the private copy levy has been duly paid.
In all other cases, the reproduction of private copy, without the prior consent (licence) of authors, artists and producers, constitutes an infringement of the exclusive right of reproduction granted to them by the Italian Copyright Act.
As Maciej Szpunar, advocate general of the CJEU, stated: “First, given the public interest in access to culture, the possibility of copying a work for one’s own private use is part of the free enjoyment of culture, which the author cannot prevent without encroaching on the user’s rights.
“Second, it is said to be impossible, in practical terms, to control a user’s private use of a work and, even if technology has now enabled such control, this would be exercised at the price of unacceptable interference with the fundamental right to private life” (according to an opinion delivered in case C 470/14, EGEDA, DAMA and VEGAP v Administración del Estado [2016]).
This principle has been adopted in many countries, albeit in different ways (for example, in Ireland the private copying levy is due only in relation to certain television rights).
Specifically, the private copy levy consists of a flat-rate royalty due for every sale of blank recording devices, and all support systems suitable for recording sound and video.
In case C 467/08, Padawan SL v Sociedad General de Autores y Editores de España (2010), the CJEU held that: “the fact that equipment or devices are able to make copies is sufficient in itself to justify the application of the private copying levy, provided that the equipment or devices have been made available to natural persons as private users”.
The amount due for private copying, which takes into account the fact that material not protected by copyright can also be recorded, was recently (re)determined by the Ministerial Decree of June 20, 2020.
The collective, the Italian Society of Authors and Publishers (SIAE), collects this levy and distributes the collected amounts to authors, producers, publishers and performers (based on percentages determined by laws).
According to paragraph four of article 71 septies, in the event of (suspected) infringement of the regulation, SIAE “may ask the judge to be shown the accounting books of the defaulter, or it may also require that the judge oblige this latter to supply all the prescribed documentation”.
“The term, “importer”, refers to anyone in Italy who is the recipient of equipment, support or memory systems subject to compensation for private copying, whatever the country of origin.”
In addition, article 182 bis expressly provides that SIAE has the power to control “the manufacturing, import and distribution of the devices and of the media under article 71-septies”. SIAE may have access to the premises where the activities are carried out and may request to examine the documentation relating to the performed activities, as well as the documentation relating to the recording devices and media.
The person required to pay the private copying levy
According to paragraph three of article 71-septies: “The remuneration is due by the persons who manufacture or import in the territory of the state for commercial purposes, the devices and media …. the above persons shall quarterly submit to the SIAE a statement of the sales made and of the remuneration due; this latter must be paid upon presentation of the statement. In the event the remuneration is not paid, the distributor of the recording devices and media shall be jointly liable for its payment.”
According to the Ministerial Decree of June 20, 2020, the “manufacturer” refers to anyone in the Italian territory involved in producing equipment, support or memory systems subject to compensation for private copying, even if they are marketed under third party brands. The term, “importer”, refers to anyone in Italy who is the recipient of equipment, support or memory systems subject to compensation for private copying, whatever the country of origin of the equipment, support or memory system.
In the case of commercial operations carried out by residents abroad to a final consumer, the importer is the person who makes the sale or offers the product; and “distributor” refers to anyone who distributes, both at wholesale and retail levels, in the Italian territory, equipment, support or memory systems subject to the compensation for private copying.
The remuneration is due after the sale of the relevant device to the Italian end-users. No payment is due for sales between manufacturers and producers to re-sellers, according to a decision by the Court of Appeal of Milan on December 29, 1998.
Key takeaways of articles
Article 71-septies
- Authors and producers of phonograms, as well as original producers of audiovisual works, performing artists and producers of videograms and their successors in title, are entitled to receive a remuneration for the private reproduction of phonograms and videograms under article 71-sexies. In respect of the devices solely meant for the analogue or digital recording of phonograms or videograms, this remuneration shall consist of a percentage on the price paid by the retailer or of a fixed amount for each device. For multifunctional devices, the remuneration is based on the price of a device which has features equivalent to the internal recording component or, when it is not feasible, it shall consist of a fixed amount for each device. As to audio and video recording media, such as analogue carriers, digital carriers, fixed or removable memories which are meant for the recording of phonograms and videograms, the level of the remuneration shall take full account of the recording capacity of each medium.
- The remuneration under paragraph 1 shall be determined by a decree of the Minister of Culture, after hearing the Committee under article 190 and the most representative trade associations of manufacturers of devices and media under paragraph 1. For the purpose of determining the level of the remuneration, the application or non-application of the technological measures under article 102-quater shall be taken into account; to the same purpose it shall also be considered the different impact of digital copying in comparison to analogue copying. The decree shall be submitted to revision every three years.
- The remuneration is due by the persons who manufacture or import in the territory of the state for commercial purposes, the devices and media referred to in paragraph 1. The above persons shall quarterly submit to the SIAE a statement of the sales made and of the remuneration due; this latter must be paid upon presentation of the statement. In the event the remuneration is not paid, the distributor of the recording devices and media shall be jointly liable for its payment.
- In the event the obligations under paragraph 3 are not fulfilled, or when there is serious evidence that the above statement is untruthful, the SIAE may ask the judge to be shown the accounting books of the defaulter, or it may also require that the judge oblige this latter to supply all the prescribed documentation.
“The phonograms producers shall pay to the concerned performing artists 50% of the remuneration they have received.”
Article 71-octies
- The remuneration referred to in article 71-septies from audio recording devices and media shall be paid to the SIAE which shall distribute it, net of expenses, in the measure of the 50% to the authors and successors in title and for the remaining 50% to the phonogram producers, also through their most representative trade associations.
- The phonograms producers shall pay to the concerned performing artists 50% of the remuneration they have received, pursuant to paragraph 1, without delay and not later than a period of six months.
- The compensation under article71-septies from video recording devices and media shall be paid to the SIAE, which shall distribute it, net of expenses, also through their most representative trade associations, in the measure of 30% to the authors and the remaining 70%, in equal shares, to the original producers of audiovisual works, to the producers of videograms and to the performing artists The amount received by the performing artists shall be allocated in the measure of 50% to the activities and purposes referred to in article 7, paragraph 2, of the law of February 5, 1992, no. 93.
Article 182-bis
- The Italian telecommunications authority (AGCOM) and the SIAE, in order to prevent and ascertain infringements to this law, and each one within the tasks conferred by law, are entrusted with supervising: a) The reproduction and duplication, by any means, on audiovisual and phonographic carriers, and any other carrier, as well as with supervising premises where the use in public by air or by cable takes place and the broadcasting activity made by any means; b) The public show in cinemas of the works and recordings protected by copyright and neighbouring rights; c) The distribution, sale, rental, broadcasting and utilisation in any form of the carriers under point a); d) Public or private reproduction centres, which use in their own premises or make available to third parties, even for free, photocopiers or analogous reproduction systems; d-bis) On the manufacturing, import and distribution of the devices and of the media under article 71-septies.
- Within the tasks it is entrusted with by law, SIAE, shall coordinate, pursuant to paragraph 1, with AGCOM.
- For implementing the tasks under paragraph 1, AGCOM may assign inspecting functions to its officers and may act in coordination with SIAE’s inspectors. The inspectors shall have access to the premises where the reproduction, duplication, sale, broadcasting, cable transmission or public show of films, as well as related activities are carried out; they will also have access to the premises where the activities under item a) of paragraph 1 are carried out.
They may require to examine the documentation relating to the performed activity, to the devices and the material in the industrial process, to the products in distribution or used through broadcasting and reception by air and transmitted by cable or in cinematographic shows, as well as the documentation relating to the recording devices and media under article 71–septies.
If the premises listed above are not open to the public or are not industrial plants or businesses or broadcasting stations, the inspectors may have access to the premises only upon order of the judicial authority.
Gilberto Cavagna di Gualdana is a partner at law firm Andersen in Milan. He can be contacted at: gilberto.cavagna@it.andersen.com
Images, from top: Shutterstock / Oleg Krugliak, vinz89, Radoslaw Maciejewski, guruXOX
