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Italian recent developments for the media sector

, Dentons, Italy Alessandro Ferrari, DLA Piper, Italy

During the past year there has been a fervent activity in the media sector. We set out below a brief update on two of the most controversial topics: the regulations for logical channel numbering (LCN) for Digital Terrestrial Broadcasting and the copyright infringement regulations in online and audio-visual services.

LCN Saga

The LCN saga started at the end of 2012 when Consiglio di Stato (that is to say, the Administrative Supreme Court) voided the first regulations on LCN which were issued by the Italian Communications Authority (Agcom) in 2010. Such regulations provided for thematic numbering blocks. In the first block, the numbers from 1 to 9 (and 20) were reserved to the national generalist channels, while the numbers from 10 to 19 and 97 to 99 were reserved to local channels, and the numbers from 21 to 96 were reserved to national channels according to the following thematic categories: semigeneralist (21 to 39); kids (40 to 47), information (48 to 53), culture (54 to 56), sport (57 to 65), music (66 to 70), repetition of prior categories and telesales (71 to 96). In addition to the above, the regulations also provided for further blocks for pay channels, radio and other interactive services.

In light of the above Administrative Supreme Court decision, Agcom issued a second LCN plan (March 2013), which was then further challenged by various parties and again voided by the Administrative Supreme Court which appointed a commissioner (commissario ad acta) with the task to issue a new LCN plan, and particularly decide upon the allocation of the most controversial (and very valuable) LCN positions 8 and 9. However, the commissioner solution was a not conclusive as various operators challenged again the commissioner's draft plan.

In April 2014 the Administrative Supreme Court, as a precautionary measure, suspended the commissioner's work, therefore reinstating the previous LCN plan (albeit subject to different administrative proceedings).

Some months later the commissioner was requested to swiftly resume the work on the LCN in order to issue its final decision within the end of 2014. However, further to the publication of the commissioner's draft, the Administrative Supreme Court issued an interim decision (November 2014) stating that the draft was not compliant with the guidelines provided by the same Court, therefore requiring the commissioner to start from scratch for the third time.

In particular the Administrative Supreme Court requested the commissioner to acquire from the Agcom and the Ministry of Economic Development certain documentation necessary to assess how many ex-analogue generalist channels were operating at the time the first LCN plan had been adopted and issue a new decision within mid-May.

We might therefore soon see the end of the story bearing in mind that a good - and long awaited - LCN plan is fundamental to drive substantial investments to the Italian market.

Online copyright infringement regulations

2014 was also the year of another long awaited Italian legislation: the regulations on online copyright infringement are, in fact, the outcome of a contentious debate on how and whether an expeditious procedure to challenge copyright breaches occurring on the Internet had to be put in place.

The first draft of the regulations, issued in 2012, provided for a notice and take down procedure intended to resemble the US Digital Millennium Copyright Act with a process which, in the first instance, was meant to be handled by the site manager, and subsequently escalated to an expeditious proceeding before the Agcom if the manager did not act upon the take down notice.

Such process was highly criticized and, consequently, Agcom was forced to set out a new procedure.

According to the new procedure, the rights' holders are required to submit to the Authority a dedicated form providing all the information required therein; within seven days, Agcom decides whether the request is justified or not - and if it is, it serves the report to the website manager as well as whomever has uploaded the content.

Within the next 35 days from the date of filing of a grounded complaint by the rights' holder, the Authority requests the defendant to prevent or cease the breach removing the offending content.

Under such circumstance if the website is hosted in Italy, Italian ISPs are also required to perform a selective removal of the challenged digital work, and - in case of a massive copyright breach - to disable access to the entire website. Similarly, if the website is hosted abroad, Italian ISPs are requested to disable access to the whole site.

In addition to the above, should the defendant not comply with the take-down orders issued by Agcom it could be subject to a fine up to Euro 258,000. However the regulations do not prevent the commencement of legal proceedings before a court: should a claim be filed before a court, Agcom procedure would immediately be dismissed.

Interestingly, the scope of the Agcom regulations specifically exclude breaches carried out by end-users and peer-to-peer programs. The reason for such an exclusion is still unclear but it has raised concerns from commentators, which were consequently echoed by the concerns addressed to the Agcom by the European Commission.

The EU Commission was in fact concerned about a number of issues, in particular as to whether (i) the regulations' use of the term "uploader" is meant to include online intermediaries who provide the means to make content accessible to the general public, but are not themselves actively engaged in the transmission, and (ii) the regulations' use of the term "websites operator" is meant to differ from the concept of a service provider as used in the E-commerce directive (2000/31/EC).

Despite the above, it is important to stress that, for the time being, Italy is the only EU jurisdiction that effectively implemented an expeditious enforcement procedure against copyright breaches taking place on the Internet. Regardless of the possible improvements, most commentators believe that these regulations will no doubt be of help for an effective protection against copyright infringements, so as to foster investments in the media sector in Italy.