The Italian Communications Protection Authority initiated proceedings for online copyright infringement upon application of right holders in the publishing industry. Applicants claimed that public channels on the instant messaging platform illegally made available for download thousands of journalistic and literary works from their catalogues. AGCOM’s moral suasion proved relevant, as Telegram spontaneously removed them.
Right holders are turning to AGCOM to enforce copyright online
On April 6, 2020, the Italian federation of newspaper publishers (FIEG) filed an urgent application with the Italian Communications Protection Authority (AGCOM) requesting (i) the removal of all digital editions of newspapers published on a few channels of the instant messaging platform “Telegram” or, alternatively, (ii) the suspension of access to the entire platform. This application was filed under the Regulation for the online protection of copyright (Regulation).[1]
Once the investigation was opened, Telegram spontaneously complied (at least partially). As a result, AGCOM found that—following Telegram’s action—the digital editions of newspapers that were the focus of FIEG’s application were almost entirely no longer accessible (the content made available unlawfully was removed from 7 of the 8 channels reported by FIEG), and that overall the number of users subscribed to these channels had decreased sharply.
In the decision adopted on April 23, 2020 via resolution No. 164/20/CONS (text published on April 27, 2020), AGCOM clarified that it is aware of the illicit dissemination of content on Telegram and of the serious damage this has been causing to the newspaper industry. According to that resolution, Telegram offers an instant messaging service that can also be accessed from the web. In addition to traditional private individual and group chats, the platform allows the creation of public channels: these channels are freely accessible to any user who subscribes to them and can be used to share any kind of content, including files up to 1.5 GB in size. This is where the copyright-protected works were illicitly shared and made available to users for download; however, AGCOM held that a blanket-order blocking access to all Telegram channels appeared disproportionate. For this reason, FIEG’s application was ultimately dismissed.
In a press release issued on the same day, AGCOM felt the need to clarify that under the applicable legislative and regulatory framework (namely, the national provisions of the so-called E-Commerce Decree[2] and of the Regulation) it currently lacks the power to order selective removal of content by operators based abroad. When a violation occurs outside of national borders (typically, when the servers hosting the website where the content is made available unlawfully are not located in Italy—as is the case with Telegram) AGCOM can only order access providers (i.e., network operators) to disable access to the whole website.
In fact, back in April, Andrea Martella—Undersecretary to the Presidency of the Council of Ministers with delegated powers for the publishing industry—called upon AGCOM when he expressed the need for effective action to be taken against the illegal circulation of newspapers and magazines through messaging apps. In addressing questions posed by the Government on how to fight online piracy, AGCOM suggested amending the current legislation in a way that would extend its powers and make its action in cases such as that of Telegram effective. Specifically, AGCOM urged that changes be made to Article 4(1)(a) of the E-Commerce Decree, with the aim of treating operators that offer Italian users information services using national numbering plans as if they were established in Italy. Similar amendments would finally allow AGCOM to order operators like Telegram directly to selectively remove unlawful user-generated content.
In a very similar vein to what happened with FIEG—and soon after that—AGCOM initiated proceedings against Telegram at the request of the Italian publishers’ association (AIE), which led to 26 channels where literary works were illegally made available being taken down. In a press release issued on May 29, AGCOM stressed that it is aware of the extensive reach that a service like Telegram has in the unlawful dissemination of content—the reported channels in this case had more than 350 thousand subscribers, and an endless catalogue of digital editions of books to choose from, freely and fully downloadable.
Based on the data collected in the latest research commissioned by AIE from IPSOS,[3] it turns out that Telegram is the source of editorial content for 22 percent of unauthorized users, and that digital piracy costs the publishing sector an estimated 528 million EUR/per year. Supported by these numbers, AGCOM highlighted the enormous economic damages caused by dissemination of unauthorized copies of literary works through the platform. Furthermore, combating piracy on Telegram is rendered all the more complex by the complete anonymity of the users who set up and manage the channels, and by a system of cross-references to other channels specifically created to migrate users and content in case content is taken down from the site.
However, this is the second time in a matter of weeks that the Russian platform has agreed to cooperate with AGCOM: when these proceedings were first filed, Telegram replied in under 24 hours, communicating that it would block the reported channels and willingly comply with the demands advanced by AIE. According to the feedback from AGCOM offices, the reported channels are not active anymore, and it appears that either they have been removed or their content has been erased.
In this sense, AGCOM emphasized that the Regulation is an important tool in the fight against online piracy, not only in terms of enforcement—which may require some legislative amendments, as called for in the first case discussed here—but also via its function of moral suasion (with a spontaneous compliance rate of about 30 percent).
The debate over online content sharing providers and copyright infringement is growing
This is not the first time that right holders have addressed AGCOM about similar instances against Telegram under the Regulation. As a matter of fact, irrespective of their outcome (dismissal of the instance) these proceedings have several significant implications for the different stakeholders involved, some of which have already stepped in to voice their positions. Political institutions and independent authorities have also joined the debate.
Firstly, the cases in question exposed the shortcomings of the Regulation when it comes to online protection of copyright. Secondly, they pushed the Government to take a position: as mentioned, the Undersecretary delegated to oversee the publishing industry (Andrea Martella) reached out to the President of AGCOM (Angelo Marcello Cardani) to relay the concerns raised by publishers and demand prompt action. Additionally, the cases triggered a debate on the powers of AGCOM: both in the letter from the President addressing the requests of the Undersecretary and in its press release concerning these decision, AGCOM demonstrated that it is not tone-deaf when it comes to right holders’ requests; rather, it expressed concerns of its own regarding the limited powers it has against copyright infringers. Also, AGCOM suggested ways to amend the current legislation to make the Regulation effectively applicable if copyright infringement is carried out through ISPs operating from foreign locations—which is the case for most online piracy. Lastly, it ushered the discussion on copyright infringement out of the stakeholders’ circuit and back into the center of Italian public and political debate.
From a legislative standpoint, the effect of the above is the likely acceleration of implementation of the DSM Copyright Directive[4] and generation of other law proposals that would grant AGCOM more extensive powers in terms of enforcement against online piracy (such as the draft law proposed by MP Capitanio).
[1] Adopted by AGCOM resolution No. 680/13/CONS, as subsequently amended.
[2] Legislative decree No. 70 of April 9, 2003, transposing Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.
[3] Information on the study available here: https://www.aie.it/Cosafacciamo/Antipirateria/Lapiraterianelmondodellibro.aspx, last accessed 18 June 18, 2020.
[4] Directive (EU) 2019/790 of the European Parliament and of the Council of April 17, 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.
