The analysis of the text approved by the Supervisor of communications for the protection of digital content covered by copyright and combating piracy. That might give her a power far unheard of on the web: the removal of content and the shutdown of sites accused of ALESSANDRO LONGO
ARE many intricate steps discussed the recent decision in which the NRA (Communications Authority ) intends to reform the rules on the basis of the digital media market Italian. In general, the criticisms relate to a few sentences of text which-despite the assurances of Commissioners NRA-open the door to draconian interpretations of the standard. In short, the resolution could give her a very broad power, unheard of on the web: the removal of content and the shutdown of sites accused of piracy. To understand more, we see the resolution in the context and then in the details of individual dots. Timing of implementation . For one thing, the rules now but they snap in Febr uary 2014. Up to September inclusive, also, the text is open to a public consultation in which all can take to get to the NRA their thoughts and only after this stage we will have the final version. Which could then be different in some detail at least, to that now available (which is in fact technically a “scheme of regulation.” Furthermore, it is always possible-indeed, desirable-that from here in February the Parliament to intervene with a law to clarify how far where it can or can not go in regulating the NRA copyright.
Overall architecture of Resolution . should also be mentioned that the repression of piracy is just one aspect of the resolution. As stated by the commissioners NRA and its president Angelo Cardan, he would not even look founding. fact The resolution also set up a committee for the development and protection of legal offers of digital works. will aim to remove the barriers to offers legal, to promote better licensing agreements, reduce distribution windows (so the movie will come online first), to educate users to the legality and so on. should be said here that the good intentions are undeniable, but the NRA can only make the glue and persuader in any third party (SIAE, distributors …), without any real power to impose taxes. Could he instead in the more challenged the resolution, precisely those for the suppression of piracy.
First doubt: the NRA is entitled to act as a judicial authority? In this regard, the first legal doubt is whether the NRA is entitled to attribute powers that were previously only in the hands of the judges in suppressing piracy online. jurists are divided on the matter. NRA has been invested by the Romani decree on audiovisual (in 2010, for implementation of a European directive) to act against piracy. Former Minister of Economic Development under the last Berlusconi government actually gave carte blanche Authority. According to some jurists, however, be entitled to make new rules against piracy does not necessarily imply that it is entitled to take powers from judicial authorities. Moreover, the NRA intends to protect all types of digital work, that is “a or more works, or parts thereof, of sound character, audiovisual, gaming and publishing, protected by the Law on copyright and spread of electronic communications networks, “to what we re ad in the draft regulation. doubt on the legitimacy even more relevant with regard to the protection of publishing works, as the Roman decree was Audiovisual. And ‘one of the aspects that would need an Act of Parliament or a decree for clarification.
The procedure against piracy: the early stages . It all begins when a holder of the copyright notices that their works are on a site (including the parties, or simply link to them, hosted on other servers like cyberlocker ). then require the operator of the site (here you go from a simple blogger to Google-Youtube) to remove them. NRA with the Committee, will encourage the spread of self-regulatory systems such as Youtube, which removes pirated works on the recommendation of those law. NRA intervenes only if this step fails or if there is a system of self-regulation.
So the keeper waits seven days, if there is a system of self-regulation, or two days if there ‘ is, after the call to the manager of the page, and then if it is not satisfied sends a message to the NRA. Can go directly from the NRA, however, if it can not contact the manager of this page.
The first possible intervention of the NRA is identification. “Where the operator on the Website can not be traced, the notice of initiation of the proceedings addressed to service providers identified for this purpose is accompanied by a request for information aimed at enabling the identification of the operator on the Website.” “The service provider shall acknowledge the request for information within forty-eight
hours of its receipt.” The service is not defined in the text of the resolution, but that logic in this case should be the hoster of the website.
Here are some critical challenge the power of the NRA to “de-anominizzare” site managers, the Authority contends that already the Electronic Communications Code of 2003 gives the administrative authority the power to ask the hosting provider ‘ identifying the addressee of its services. NRA then “inform the uploader of the content, the manager on the Website and service providers that can be adapted spontaneously within a period of three days from the receipt of the communication itself.”
Piracy, the investigation . The investigation of the NRA to start only if there is a refusal to remove spontaneously. then enter into the merits and finds that there has been a violation, and ordered his “service providers” to intervene. Here is the point that according to many critics is more ambiguous and open to interpretation may concern. We read that the Authority orders to service providers to provide, within three days of notification of ‘order, the selective removal of digital works distributed in violation of copyright or related rights or the disabling of access to, respecting the criteria of proportionality and gradualism and taking into account, among other things, the severity of the violation and the location of the server. “Here NRA puts together indiscriminately procedures and different figures. The hosting provider can indeed selectively remove pirated files from our servers, and as a rule the provider of internet access can only obscure the website. The only way in which the access provider can remove individual works is to analyze all the traffic of users, with serious violation of the privacy of the users, by means of deep packet inspection. NRA is aware of it, so much so that writes to “considered” that accompany the text that are “filtering techniques are not compatible with the recent case law of the Court of Justice of the European Union.” Several councilors NRA, in previous interviews, they stated that there will be no Deep packet inspection systems. Yet in the text of the resolution is not clear what “service provider” does what and who in fact do not ask access providers to selectively remove by filtration. The text, as it is written, gives rise to every possibility and then a change is to be hoped that solves ambiguity, already very challenged by the internet provider.
Another ambiguous aspect: the provider can prevent access to the pirate site alternating their DNS or blocking the IP address. The resolution acknowledges both ways , but according to many, the block of IP is equivalent to interrupt a communication and therefore censorship. text could be interpreted as follows: NRA that entitles the provider to choose how obscure the site and that will not impose the block via IP, but on this the text is not explicit enough. With the help of the text considered, also, we can guess that the NRA intends to ask the hosting provider to remove the work, whether contained on this server Italians, but if the site is foreign to ask instead internet provider to darken. However, once again, the actual text does not discriminate these roles.
The whole procedure lasts 45 days, which decreased to 10 in the most serious cases dealt with by the NRA in the so-called “summary judgment.” In which is given only one day to “service pr oviders” at the end of the procedure, in order to comply (compared to the three days of the normal procedure). Pena a fine from 150 to 150 thousand euro. Even on short notice of these deadlines is controversy.
With what resources? Yet another aspect to be clarified is how will the NRA to baste these processes: with what resources, with what additional staff? The theme is not secondary because if it has insufficient resources may happen two things: an excess of permissiveness (will not respond to many reports of the holders of law) or an excess of severity (“miscarriages of justice” due to haste, not to be able to follow well all cases submitted to it ).
Authority for guarantees and rights of internet users . should be said that the Authority has put some safeguards to protect users and freedom of the internet. Wrote in the text that will not hit the downloader (and Faq added that the measure will not affect even the uploader of peer to peer, so if you take only the sites and their operators). article two writes that “operates in accordance with the the rights and freedoms of expression, news, commentary, criticism and discussion, as well as the exceptions and limitations provided for in the Law on Copyright, “” subject to the safeguards set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union. “Now the step that remains is to transform these statements of principle in a text that incorporates leaving no room for doubt
and ambiguity. The risk, in the face of even a slightest uncert ainty, at times so stringent at the end of the procedure (one to three days) and a penalty so high (up to 150 thousand euro), is that the “service providers” remove and obscure works sites without thinking twice, regardless of the fact unlawful.
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