The Italian Communications Authority ("AGCOM") published the Regulation that represents the final step in the transposition of the so-called remuneration chapter of the EU Directive on copyright and related rights in the Digital Single Market in Italy.1The Directive2vested in AGCOM numerous regulatory powers. For this reason, many operative aspects of the reforms imposed by the Directive were left to be defined by AGCOM, once again identified by the Italian legislator as the authority of choice for all things copyright thanks to their strong expertise built over more than a decade in this field.
The main goal of the Regulation is to enhance the protection of copyright and related rights by ensuring that authors and performers receive an adequate and proportionate remuneration for the exploitation of their works. The term "work" refers to any work protected pursuant to the first chapter of Italian Copyright Law3, including, for example, audiovisual, musical or editorial works To this end, the Regulation details the content and extent of the right granted to authors and performers to receive up-to-date and complete information regarding the exploitation of their works and artistic performances, which they shall receive from their first contractual counterparts on a six-monthly basis, except as otherwise agreed and insofar as it is allowed. The information will have to relate primarily to the revenues generated from the exploitation of the works of authors and performers' works while streaming platforms will also have to provide information on the number of purchases and views as well as on the number of their subscribers.
However, three years after the execution of the agreement by which they transferred their rights, authors and performers will receive the above information from their first contractual counterparts only upon request. The choice appears considerate on the grounds that, after three years, works have normally reached their "maturity", meaning that their most relevant exploitations have taken place, as a result of which there would no longer be any economic rationale for the obligated subjects to provide the information proactively.
The Regulation also provides for a contract-adjustment mechanism whereby authors and performers are entitled to receive an additional remuneration to that originally agreed upon from the party with whom they have entered into a contract for the exploitation of their rights (e.g. the producer for audiovisual works) or its successors in title. The right to this additional remuneration, however, is subject to certain conditions. In particular, the fee originally agreed in exchange for the transfer of rights must prove to be disproportionately low in relation to the income generated over time from the exploitation of the works. Furthermore, this mechanism operates only in instances where the author or performer receives a lump-sum remuneration. In addition, to ascertain whether the remuneration initially agreed is "disproportionately low" enough, i.e. to the extent necessary to trigger contract-adjustment, AGCOM lists a number of factors that must be taken into account, including the costs incurred in the production and exploitation of the work, the contribution of the author or performer, and whether the author or performer has received any other remuneration pursuant to other legal provisions.
The Regulation finally addresses the long-standing issue of the management of the rights of the so-called "apolidi", i.e. those authors or performers that are not members or associates of any CMO. To this end, the Regulation provides that the three most representative CMOs for each category of rights will be entitled to collect the fair remuneration due to apolidi as well, unless those subjects exercise an opt-out. In the Regulation, AGCOM also establishes the criteria for measuring the representativeness of CMOs, which will be calculated on an annual basis and will take into account data on the actual use of works.
The Regulation will apply from June 15, 2024.
Footnotes
1 The Regulation was adopted through Resolution No. 95/24/CONS on May 15, 2024, as a result of the public consultation launched in February 2023. The full text of the Regulation is available here
2 Directive (EU) 790/2019rst transposed into law by Legislative Decree No. 177/2021
3 Law No. 633/1941
This article is written in collaboration with Angelo Aimar
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.