The Italian Government has signed an agreement with the Chinese e-commerce giant in order to promote the excellence of Italian agricultural products and to fight against the phenomenon of counterfeit produce.
The agreement will enable Italian producers to satisfy the increasing demand for typical Italian products on the Chinese platform, which counts over 430 million consumers. The agreement aims at guaranteeing our Italian brands with a high level of protection against the counterfeit products market. This is also an important result in light of the fact that for decades the WTO has been searching for an adequate form of protection, which in this case has been achieved with a private company in the space of just a few months.
Since last year it has no longer been possible to find counterfeit Italian agricultural produce and foodstuffs on the Chinese website, which has prevented the monthly sale of 99 thousand tonnes of counterfeit Parmesan cheese, 10 times more than the production of the authentic cheese itself, and the sale of 13 million bottles of Prosecco which did not originate from the Veneto Region (in Italy). Italy is currently the only country on Alibaba, which has granted the same level of anti-counterfeit protection to DOP and IGP products as that provided for commercial brands. A level of protection which under this agreement is extended from the b2b platform, accessible solely to companies, to the b2c platform, consequently assuring that those 430 million Alibaba website users will be able to purchase genuine “Made in Italy” products.
The Ministry of Agriculture has set up an operational task force at the Anti-Fraud Inspectorate with the aim of identifying and reporting counterfeit products on a daily basis. The ads are removed within 3 days and the vendors are informed that they are violating Italian geographical indications and designations of origin.
We should point out that Italy has also invested in the promotion of Italian wine and food on the Chinese e-commerce platform. With this agreement Alibaba has undertaken to instruct both vendors and consumers on the importance of geographical indications and designations of origin in the food industry.
The Italian Antitrust Authority has submitted an opinion to the Italian Parliament and Government, in which it warns that SIAE’s current monopoly of the management of copyright restricts both the ability of other market operators to do business and users’ freedom of choice.
In a communication on the implementation of Directive 2014/26/EU by the European Parliament and the Council on the collective management of copyright in the internal market, the Antitrust Authority emphasised that the core of the Directive is based on freedom of choice and that it specifically provides rightsholders with the right to decide their choice of collective management organisation “(…) irrespective of the Member State of nationality, residence or establishment of the collective management organisation, the other entity or the rightholder (…)”.
The Antitrust Authority has remarked that in an economic climate characterized by significant technological changes, the preservation of a legal monopoly appears to be in contrast with the aim of enabling rightsholders to operate a free choice from a range of operators. According to the Authority, “the merit and the very rationale of the European legal framework are severely compromised by the presence within (Italian) national legislation, of the regulation contained in art. 180, law 22 April 1941, no. 633 (Italian copyright law), which is now a solitary case compared to other Member States’ legislations, in reserving to a single organisation (SIAE) the management activity regarding copyrights”.
The Antitrust Authority stresses that the implementation of the Directive offers the opportunity to open up the market to competitor organisations in the field of copyright management. However, the draft law approved by the Chamber of deputies and currently under discussion before the Senate, which delegates the Government to implement European directives and carry out other acts of the European Union (the 2015 European delegation law), does not expressly provide for any specific action on SIAE’s status as a legal monopoly.
Therefore, the Authority hopes that action aiming at liberalisation should be integrated by an overall reform of the procedures of copyright management listed in the Copyright law, without overlooking a review of the role and the function of the SIAE in today’s changed climate.
* SIAE is the acronym for the Italian Society of Authors and Publishers (Società italiana degli Autori e Editori).
Yahoo’s! Italian division had been convicted because of a number of videos uploaded by users on the “Yahoo! Video” platform which is now no longer operative. The incriminated videos had been taken from RTI (Mediaset Group) television broadcasts such as “Amici”, “Grande Fratello”, Striscia la notizia”, and so on.
In the opinion of the Court of First Instance, although the videos had been circulated by users, Yahoo was to be considered responsible for the violation inasmuch as the activity of the platform could not be restricted to the liability provided for under article 14 of the European Directive on Electronic Commerce (2000/31 / EC) implemented by Italian Legislative Decree 70/2003.
Failure to recognize the neutrality of the intermediary was motivated by Yahoo’s! alleged control over the videos which would have made the platform an “active” hosting provider and thus different from the “passive” providers protected by the Directive. Basically, the Court had identified the platform’s business activity to be of a publishing nature, due on account of the function of automatic indexing and, paradoxically, the ability to remove content reported as illegal.
Accordingly, the Court had also found Yahoo! guilty of the non-removal of all the videos following the injunction served by RTI. These were grounds that Yahoo! had unsuccessfully contested during the proceedings, claiming to have immediately removed the nine videos indicated and to have requested RTI to specify other URLs of videos to be removed, in addition to which they claimed they had never received the complete list.
In a ruling that overturns the judgment of First Instance, The Court of Appeal stressed that Yahoo! had also promptly proceeded to remove a further 218 videos, when the relative URLs were indicated by RTI during the course of the trial.
With regard to the platform’s culpability, the Court of Appeal quoted certain decisions taken by the Court of Justice of the European Union such as those relating to the SABAM-Scarlet case, the -SABAM Netlog case and the Telekebel case and rejected the interpretations of the Court of Milan in 2011. Consequently the conditions do not exist for considering the platform as belonging to a different type of hosting provider not protected by Directive 2000/31/EC. Yahoo! is therefore a simple intermediary and as such under no obligation to independently identify any content in violation of RTI’s rights, nor would it have needed to implement a system of filters to prevent the further violations.
RTI has therefore been ordered to pay Yahoo’s! legal costs incurred in First Instance and Appeal amounting to 244,000 Euros.
The text of the judgment is published HERE.
The Court of Milan has rendered a decision in favour of the Soundreef start-up, thus effectively opening up the market to free competition from music copyright collecting societies regarding the collection and distribution of music royalties.
Background music for shopping malls and other businesses is therefore not necessarily limited to the mediation of SIAE, the sole rights management society in Italy.
This ruling by The Court of Milan rejects the requests made both by a songwriter member of SIAE (Laura Piccinelli) and the in-store radio Ros & Ros, which specializes in creating playlists for shopping malls and is on the list of subjects with SIAE authorization.
The lawsuit was started with the aim of prohibiting the collecting activities of Soundreef, a London based collecting society, which distributes a large catalogue of in-store background music to businesses in Italy.
The Plaintiffs had invoked art. 180 of Law no. 633 of April 22, 1941 of the Copyright Act which granted SIAE a legal monopoly over copyright collecting services. With its recourse to urgent procedure, the Court of Milan has sought to give precedence to art. 56 of the Treaty on the Functioning of the European Union regarding free movement of services, adjudging that there is not sufficient evidence to consider the distribution of music by Soundreef in Italy to be illegal and even less to assert that “the music managed and distributed by Soundreef in Italy in shopping malls and other similar businesses should necessarily be entrusted to SIAE’s mediation. Such a claim would conflict with the principles of free trade within the EU and with the fundamental principles of free competition”.
In addition, the Judges have decreed that, since Soundreef is a British company, “it cannot be said that there exists any obligation for European collecting societies only to do business in Italy by way of reciprocal agreements with the local collecting society. This would only occur at the discretion of the parties, but is not to be considered as an obligation”.
The dispute between Soundreef and SIAE had appeared inevitable, as the London based start-up’s structure allows the uploading of free music tracks by artists who keep 100% of the related property rights.
The news of the failure of Mediaset’s appeal against the American citizen who came into possession of the domain “mediaset.com” has been widely reported in the Italian media.
The matter began a year ago, when possibly due to oversight or misunderstanding the Milan based company failed to renew its domain “mediaset.com” which was subsequently bought at an online auction by Didier Mediba, a sales agent from Fenicius Llc, a Delaware company.
In November 2011, Mediaset appealed to the Arbitration and Mediation Centre of the WIPO, the World Intellectual Property Organization in order to obtain the reassignment of the domain .
The reasoning put forward by the Italian company founded by Silvio Berlusconi related to the apparent similarity of the domain “Mediaset.com” with the other domains of which it owns the rights and the lack of any real interest on the part of Mr. Madiba in purchasing the domain.
The Fenicius LLC legal team replied to the allegations by claiming that the word “Mediaset” is formed from two words very common in English, “media” and “set”, to which the Italian company had no trademark rights. In addition to this, the lawyers maintained that it was Mr. Madiba’s intention to set up in business precisely in the field of media storage devices.
WIPO’s arbitration surprisingly upheld the reasons put forward by the defence. While recognizing the resemblance between the domain in question and the trademarks owned by Mediaset Spa, WIPO considered the allegations of bad faith on the part of the Fenicius Llc sales agent made by Mediaset Spa to be too generalized and insufficient.
Therefore, the domain “Mediaset.com” remains in the hands of Mr. Madiba, at least until the two sides reach a commercial agreement for its transfer.
To date, the web address corresponds to a site that sells equipment for media storage.
Professional freelancers are allowed to use non original software applications as their activity of providing professional services cannot be considered as a business concern.
With this motivation, the Court of Bologna acquitted an architect accused of copyright infringement for using 9 illegally duplicated software applications in his professional activity including Autodesk Autocad, Microsoft Office and several Adobe applications, for a total value of €17,835 net of VAT.
The architect ended up in Court after an inspection by the tax police unit of the Italian Financial Police Corps carried out in his offices. The charge related to the violation of art. no. 171 bis of Law no. 633 of 1941, which punishes “whoever unlawfully duplicates computer programs for gain and whoever for the same purpose imports, distributes, sells, keeps for commercial or business purposes or rents programs contained in packages not labelled by the SIAE (the Italian Authors and Publishers Association) “.
The judge Alberto Zanoli acquitted the architect maintaining that no crime had been committed since the work done by the architect, is incontrovertibly to be considered as a professional service and as such differs from the activity of a business concern to which art. 171 bis of Law no. 633 of 1941 refers.
According to some commentators the principle expressed in this judgment also seems to apply to the purely private use of pirated programs.
With six suppressive amendments the Italian Chamber of Deputies has eliminated from the 2011 Community Law the amendment that the press had labelled as the Italian SOPA.
The proposed legislation, presented by The Northern League MP Fava, stated that any interested party could request hosting service providers to remove any content simply by claiming it to be illegal, without any investigation by the Judicial or Administrative Authority being required and that should the provider fail to comply with the request it could be held responsible .
The Italian SOPA has been revoked by the Chamber with the approval of six identical all party amendments. The votes were 365 in favour, 57 against and 14 abstentions.
Great satisfaction was expressed by the Italian associations supporting digital rights for citizens particularly by Agorà Digitale, one of the prime movers in the protest against MP Fava’s amendment. Commenting on the issue on his association’s blog the Agorà Digitale President Luca Nicotra remarked that “First of all today’s vote confirms the new, important and effective possibilities of mobilization that the Internet offers to citizens, who are more determined than ever to defend their rights interacting with and when necessary directly challenging their parliamentary representatives. It is also a sign that there is a small all party group of MPs determined to defend the values of an open and free Internet”.
The suppression of Fava’s amendment has, however, been received with some disappointment by the major representatives of the Italian entertainment industry. Marco Polillo, President of Confiindustria Cultura Italia, (the Italian Industrial Association for Culture) has spoken of a “missed opportunity to fight piracy”, while the President of FIMI, (the Italian Music Industry Federation), Enzo Mazza, has stressed that the rejection of the Italian SOPA is “a victory for Megaupload and The Pirate Bay”.
A recent ruling by the European Court of Justice which stated that eBay has liability for the selling of counterfeit goods on its pages offers food for thought on the motley phenomenon of online auctions.
EBay is a well-known website where registered users offer goods for sale which are purchased through a procedure which is in many respects similar to that of an auction. In fact, starting from a minimum price, the goods are “sold” to the party offering the highest price within a certain time limit. However, we should ask ourselves whether a genuine auction takes place on eBay and, consequently, what specific area of legislation should be applied.
What is meant by the term “online auctions”?
The expression “online auctions” may refer to different practices not all of which may be defined as genuine auctions.
The main distinctive feature is the role played by the auction house itself: in a genuine auction, the auction house carries out a series of operations for which it takes responsibility, ranging from guaranteeing the procedure is carried out correctly to providing detailed information on the goods at auction.
However, it is not rare for operators of sites where online auctions are held to limit themselves to providing potential buyers with the technological platform and refraining from carrying out any operation regarding the completion of the negotiation process. In other words, in these cases site managers can be compared to service providers and as such, subject to the provisions under Italian Legislative Decree no. 70 of April 9, 2003 which, as is well known, exempt the provider from a general obligation to monitor the information transmitted or stored, or from a preliminary investigation into facts or circumstances pointing to the presence of any illicit activity.
Are online auctions prohibited?
Art. 18, subsection 5 of Legislative Decree no. 114 of 31 March 1998 forbids online auctions, in the strict sense of the word, through the use of television or other means of distance communication. However, we would like to draw attention to the following point: not all online auctions are prohibited, but only those that are conducted between professionals and consumers. In more precise terms, as indicated by circular No. 3547 / C dated June 17, 2002, the ban only affects retail operators who conduct a direct sale to the final consumer. The reasoning behind this ban is clearly to avoid consumers from making purchases which are injudicious or not made in complete awareness.
From this analysis it emerges that it is only through case by case verification that we will be able to distinguish genuine online auctions from similar negotiation practices between a professional vendor and a consumer on which provisions on distance contracts referred to in Legislative Decree no. 206 of September 6, 2005 are applied.