The Italian new anti-piracy law and the regulation by the Communication Authority on live sport events

Foto di Mateus Dach da pexels.com

The Italian new anti-piracy law, no. 93/2023, came into effect as from 8 August. We have already talked about it here in this blog, describing its main contents.

Among other things, the new rules allow the Italian Communication Authority (AGCOM) to order Internet Service Providers (ISPs) as a matter of urgency, ex parte, to block access within 30 minutes to unauthorised transmissions of "live content, premieres of cinematographic and audiovisual works or entertainment programmes, audiovisual content, including sports, or other similar intellectual works, sporting events as well as events of social interest or of great public interest" .

Specifically, AGCOM may act on the interim request of:

a)    the right holder;

b)    the licensee of the right;

c)    the collective management association or trade association to which the holder or the licensee of the right has given a mandate; or

d)    a so-called "trusted flagger" pursuant to Section 22(2) of the Digital Services Act (Reg. (EU) 2022/2065).

If it deems that the request is substantiated and that the case is serious and urgent, AGCOM may order the concerned ISPs to disable access to abusive content by blocking:

i)               the DNS resolution of domain names;

ii)              the IP addresses uniquely intended for the dissemination of abusive content; and

iii)            the so-called "aliases", i.e. any domain name or IP address, "to whomever referrable", which, after the blocking order, allows access to the same illicit contents and to contents of the same nature.

The order must be issued and implemented before the start or, at the latest, during the (first) transmission of the content. It will be notified immediately by AGCOM to:

i)               network access providers;

ii)              search engines; and

iii)            any other ISPs involved in the accessibility of the website or illegal services.

These entities will have to implement the order as soon as possible and in any case within 30 minutes of notification, "by disabling the DNS resolution of the domain names and the routing of network traffic to the IP addresses, or in any case by adopting the technological and organisational measures necessary to make the illicit content unusable by the end users”.

In the event that the abusive contents, to circumvent the block, are subsequently delivered through different domain names and/or IP addresses, the right holder (or any other entitled entity) must inform at the same time AGCOM and the ISPs, which again will have to disable access to the content within 30 minutes.

Appeal against the blocking order will be available for the concerned ISPs.

The law delegates to AGCOM the task of regulating this interim procedure by amending, within 60 days, the rules contained in its "Regulation on the protection of copyright on electronic communication networks" (the "Regulation", resolution no. 680 /13/CONS).

Furthermore, within 30 days, AGCOM will have to convene a technical table with all interested parties (right holders, ISPs, associations...) in order to define a common technological platform allowing ISPs to automatically disable access to content and AGCOM to automatically verify the reports relating to aliases. According to the law, the platform must be completed within 6 months.

For its part, on 26 July AGCOM amended its Regulation with resolution 189/23/CONS, which is already partially in line with the new law and which will come into force once the aforementioned technological platform has been created and in any case before January 1, 2024. For now, the changes are limited to the protection of live sporting events only. For these, it is possible to ask AGCOM to order mere conduit service providers operating in Italy to disable the access to the contents by blocking the DNS resolution and the IP addresses concerned as well as the subsequent aliases .

AGCOM must issue its decision within 3 working days of receiving the request and the ISPs must implement it within the deadline established by AGCOM and in any case within 24 hours of receiving the notification. Given that the anti-piracy law sets a maximum term of 30 minutes for the implementation of the order, it can be envisaged that this will be the term that AGCOM will establish in its orders. Moreover, the Regulation itself already provides that ISPs have a maximum of 30 minutes to extend the block to the aliases subsequently indicated.

In September 2023, AGCOM should start a consultation to introduce the further changes to the Regulation required by the anti-piracy law, including the extension of these changes to the other contents provided in the law, other than live sporting events.