An Italian DMCA - What Liabilities for ISPs?

The Italian Communications Authority (AGCOM) has launched a public consultation aimed at setting new regulations on the protection of copyright on electronic communications networks that include both Internet and television networks. The document attached to the public consultation notice sets out the guidelines of the regulations that AGCOM is willing to issue and addresses specific questions to operators interested in joining (within 60 days) the consultation. 

The consultation is relevant for ISPs as AGCOM's guidelines refer to the adoption of a "notice and take down" system modelled on the US Digital Millennium Copyright Act (DMCA) and based on the following 5 steps:

1. notice of the copyright owner to the ISP/provider of audiovisual contents;
2. in case of lack of removal of the contents, notice to AGCOM;
3. investigation on the dispute by AGCOM together with the parties;
4. adoption of order by AGCOM; and
5. monitoring of the compliance with the order and issuing of sanctions in case of lack of compliance.

It is still uncertain how (and if) AGCOM is willing to limit the risk of (i) potential abuses by copyright owners of the above mentioned mechanic and of (ii) potential liabilities for ISPs that might be obliged to remove any content subject of a notice. Indeed, the current version of the guidelines prescribe that the ISP is obliged to remove the contents if "the notice is grounded" leaving to the discretion of ISPs the evaluation on the groundness of the notice which represents the main weakness of the system currently adopted through the implementation of the EU E-Commerce Directive.

Do you want to know more on the above? Do you want to join the consultation? Feel free to contact me, Giulio Coraggio.