Editorial Director: Giusella Finocchiaro
Web Content Manager: Giulia Giapponesi

posted by admin on febbraio 23, 2015

Copyrights, Responsibility of providers

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The Milan Court of Appeal has upheld Yahoo’s! appeal against the judgement for violation of copyright, issued in favour of the Mediaset Group in 2011.

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.

 

 

posted by admin on luglio 13, 2011

Copyrights

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The Italian Communications Regulatory Authority (Agcom) has approved a draft regulation on copyright protection on the Internet which was at the centre of a recent protest.

The new regulation has been revised in order to delete some of those ambiguities that have fuelled the debate among critical commentators. In more precise terms the Authority stressed that the new rules provide no measures for prohibiting access to websites hosting contents in violation of copyright.

The Authority also highlighted the limits of the relationship between its administrative intervention and the Judiciary’s supreme powers.

The new measures for the protection of copyright on websites will be divided into two parts:

In the first stage, the so-called “notice and take down stage”, the legitimate copyright holder will send a request to the website administrator for the removal of material considered in violation of copyright. Should the website administrator acknowledge that the rights of the reported content are in fact attributable to the alleged copyright holder, the website administrator may remove the contents of his own free will within 4 days of the request being made.

Should any problems arise during the first stage, the parties may apply to the Authority, which, following a clear and transparent cross-examination phase of ten days, will in the following 20 days (which may be extended by up to 15 more) issue a selective order to remove the illegal content or alternatively to return it, depending on which of the requests is accepted.

This procedure is considered as an alternative to and not as a substitute for judicial process and will be suspended in the event of an appeal to the Court by either party.

This new Agcom regulation observes the principle of fair use and does not therefore apply to non commercial or nonprofit websites, to educational or scientific sites, or in cases of exercising the freedom of reporting, commenting, criticism or discussion.

In addition, It does not concern cases where partial reproduction of a work, whether in quantity or quality of content compared to the complete work, is not detrimental to its commercial exploitation.

The authority specifies that the measure in no way involves end users, nor does it relate to peer-to-peer applications.

Following passage, the regulation is now subject to 60 days of public consultation from the date of its publication in the Official Journal, the aim of which is to acquire further proposals and comments from stakeholders.

 

 

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