The solemn rejection by the Italian Antitrust Authority of the legislative decree scheme transposing EU Directive 790/19, which should make significant changes to the copyright system and in particular to the relationships between content creators and platforms that make them available to the public, it is only a moment of a war that has lasted for about twenty years and that sees companies with a strong evolutionary content and technology opposed to traditional ones, first of all publishing and audiovisual ones. Vincenzo Zeno Zencovich
It is a war that by similarity could be defined as “of position”, in which the metaphorical trenches to be conquered or defended are represented by the articles, by the paragraphs and even by the adjectives of the normative texts. It is a purely economic and geopolitical war. The high-tech companies are predominantly US. The editorial ones, mainly European. In the background there are other more general issues: the tax revenues of the States from activities which, due to their immateriality, escape the ordinary rules of taxation; the cultural identity of Europe and of individual states; personal data as an immense deposit that can be exploited by those who have access to them and the skills to do so.
In this broader scenario, the Italian legislative decree of transposition lends itself to different readings.
First of all, it should be remembered that when, in April 2019, the proposed Directive was submitted to the European Council for approval, the Italian government, together with the Dutch, Finnish and Polish ones, voted against. The reasons appear, in the light of the current dispute over the text of the transposition decree, to be significant.
In their declaration, the four governments highlighted how “the final text of the directive does not adequately respond to the objectives” of “strengthening the proper functioning of the internal market and stimulating innovation, creativity, investments and the production of new content, including in the environment. digital”. “We believe that, in its current form, the directive represents a step backwards for the digital single market, rather than a step forward. More specifically, we regret that the Directive does not strike the correct balance between the protection of right holders and the interests of EU citizens and businesses, with the risk of hindering rather than promoting innovation and with potential negative effects on the competitiveness of the European digital single market. ”
And they added that in their view the directive was “lacking in legal clarity, which could generate legal uncertainty for many relevant stakeholders and could undermine the rights of European citizens.”
The first remark clearly echoes the opinion of the Italian Antitrust Authority, which obviously is concerned with the development of competition in digital environments. If it is certainly Italy’s obligation to implement the Directive, however it would be singular that our country, after having expressed criticisms shared by other nations strongly attentive to the intersection between technologies and creativity, such as Holland and Finland, made a complete behind- front than its official position.
As for the second remark – on the ambiguities of the text – it immediately proved to be well founded. Suffice it to say that to try to give a univocal meaning to art. 17 of the Directive, made up of ten paragraphs, the Commission had to issue “Guidelines” of no less than 30 pages. This, moreover, is a dangerous symptom of the poor “self-restraint” (others would speak of arrogance) of the community institutions, which supplies fuel to anti-European arsonists.
These general considerations find a formal juridical pivot that is difficult to avoid. Directive 790/19 – like most of those relating to copyright – is considered a directive of “maximum harmonization”. The term typical of the Community legal term means that the Member States, when they transpose it, cannot introduce more restrictive or burdensome rules.
The political and practical meaning is quite evident: on the one hand, the directive is the result of a difficult compromise between the European Parliament, the Council and the Commission, which must prevent each country from dismantling at will. And even more specifically, given that the directive expressly, in its title, refers to the “digital single market”, it is unthinkable that this “single market” is governed by different rules and that a platform or a publisher has a preferential treatment or worse in one country than in another.
This implies that the transposition – by any Member State, and not only by Italy – is at the most respectful of the text of the Directive and its objectives expressed in its initial 86 “recitals”.
A brief conclusion. Platforms, applications, publishers, audiovisual content producers, telecommunication network operators, users live in an immense digital eco-system in which, if certainly the aspects of entrepreneurial profit (in this case of the opposing armies in Directive 790) are important, they must be seen in the light of welfare economics, of the participatory use of digital tools, of the promotion of innovation. The doubt arises that the meticulous discipline on the part of the EU institutions ends up completely plastering the European eco-system, which will always lag behind not only the United States, but also the great leap forward that China is making. *** Related Articles:
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