How much piracy is needed for antipiracy sanctions to be available? Decisions from Spain and Italy
Piracy seems to continue in the troubled waters of the Mediterranean shores of Italy and Spain, at least when it comes to the assessment of, and to sanctions for, the online infringement of copyright works. Indeed, in the past couple of weeks in both jurisdictions the relevant authorities of each country have given two relevant decisions which fit within the new wave brought by the corresponding recent developments of their online enforcement frameworks.
As regards the Italian case, Agcom (the Italian Communication Authority), on which the IPKat reported here herehere here and here, recently affirmed that the presence of a single infringed literary work, namely Project Management –A Practical Handbook, on the website www.dasolo.info could not justify an order to disable the access to the entire website.
As the hosting provider’s servers were located outside Italy, the sole measure available according to Article 8.5 of the Regulation on Online Copyright Enforcement would have been to request Italian mere conduit providers to inhibit the access from Italy to the whole site.
Agcom applied the principle of proportionality construed by the EU case law (let's refer to Promusicae C-275/06 and to Telekabel C-314/12) when it dismissed the case, in that it considered that the allegedly unlawful distribution of one single copyright work could not constitute a minimum threshold of infringement deserving the termination of the access as provided by the regulation.
Although a balancing approach between the fundamental rights is always welcome, meaning in the case at stake copyright on the one hand and the freedom to conduct a business on the other, there nonetheless remains a sense of frustration. Maybe it is inherently induced by a regulatory and technical gap for not being possible to undergo a selective takedown of the infringing material in cases such as the 'dasolo.it' in which the hosting servers are located outside Italy, or maybe because it is not that clear why the website's registrant is a Panamanian company specialised in online anonymity services and why the 'dasolo.it' site adverts in its website heading the slogan “Da Solo All for Free” (“Da Solo Tutto Gratis”).
At least, looking at the Agcom's decisions along this first year after its entry into force, no distinction has been made with regard to the type of copyrighted work, and to the consequent right holders’ claims, in similar circumstances to those of the case at hand where there was a sole infringement in a certain website hosted by the servers abroad.
Indeed, Agcom also reached the same conclusions in proceedings regarding audiovisual works, as was the case for “Il mistero di Dante”a 2014 Italian independent movie, to which the users could be directed by means of two links at the webpage www.guardarefilm.com. Agcom considered that the author’s rights were infringed, and that this concerned the Italian public as the 86,8% of the website’s users were from Italy. Remarkably however, despite the double source for infringement, the quantitative analysis of Agcom held that the protection of the audiovisual work, which still was the sole infringing material enforced by the complainant, was superseded by the principle of proportionality.
That said, should a lesson be inferred from Agcom’s decisions we may say that, apart from directly contacting the website or webpage manager/s, right holders should be aware of the Agcom’s range of parameters whereby the violation of copyrighted works can be successfully enforced or not depending on the location of the hosting servers. If one single work infringed would lead to the dismissal of the case, a bunch of eleven works unlawfully exploited can amount to a massive infringement and serve for enacting the fast track proceeding provided by Agcom’s Regulation (see the IPKat here).
Totally different outcomes were achieved by the Spanish Courts of the Administrative Jurisdiction in two cases related to the piracy of music works, ordering the Spanish internet access providers to block the access to both The Pirate Bay’s webpages and the streaming website Goear. Therefore, the Courts complied with the Spanish IP Act in that they authorised the measures of disabling the access to the referred websites and, therefore, ratified the decisions of the Second Section of the Intellectual Property Commission, which was introduced by means of the Sinde Law to counteract online piracy in Spain.
In both suits, the Spanish Collective Society AGEDI (Collective Society for Authors and Producers) filed a complaint before the Second Section of the Intellectual Property Commission in the view of the huge quantity of music files made available to the public without the consent of the right holders. The Spanish Administrative Authority allowed AGEDI’s requests in view of the massive infringement of the protected music works and in compliance with the principle of proportionality provided by Article 158ter of the Spanish IP Act.
After having recently put in place the appropriate measures to combat online piracy Italy and Spain are now strictly following their routes to safeguard copyright streams in their online environments.
