Compensation for private copying: the AGCM initiates an investigation against SIAE

Compensation for private copying

Not everyone knows that in Italy the law requires whoever manufactures or imports recording equipment, memories and blank media to pay the so-called “remuneration for private copying” (CCP) on the territory. This is an amount collected by the SIAE and paid - according to a rather complex system, which we will see later - to the holders of copyright on intellectual works. More specifically, these are authors and producers of phonograms, original producers of audiovisual works, performers (the latter, for the sake of brevity, indicated with the acronym AIE, artists - performers), producers of videograms and their successors in title. .

The idea behind the institute is, in fact, the fact that the buyers of those products will most likely also use them to make copies of works protected by copyright for private use. By imposing this "heavy tax", therefore, copyright holders could receive some sort of compensation.

As can be understood, this mechanism has generated - and continues to generate - not a few controversies. In fact, it ends up driving up the prices of PCs, smartphones, mp3 players, hard disks and USB sticks, on the basis of a presumption that does not always prove to be right: for example, the C.C.P. it also weighs on those who use such devices to reproduce exclusively their own materials!

As if the criticisms of the very legitimacy of the mechanism were not enough, then, to the critical framework of the CCP another element must be added: with a recent provision of last February 2, in fact, the Competition and Market Authority (AGCM) approved the start of an investigation against SIAE and other bodies in the sector to verify the effective adoption of anti-competitive practices in the management of the CCP

Before going into the story, however, let's take a closer look at a couple of essential aspects to fully understand the issue.

Compensation for private copying: the distribution system

The size of the CCP is currently established by the Decree of the Ministry of Cultural Heritage and Activities and Tourism of 30 June 2020, Determination of the remuneration for the private reproduction of phonograms and videograms.

The rest of the discipline, on the other hand, is much older in time and is provided for by the Copyright Law (articles 71-sexies, 71-septies, 71-octies l. 22 April 1941 n. 633), which, as anticipated, requires producers and importers of equipment intended for analogue or digital recording to pay the CCP to the SIAE. due "and, at the same time, pay the relative amounts. The SIAE, in turn, will proceed to distribute them to those entitled.

Photo credit - depositphotos .com In the case of the authors, the payment of the C.C.P. it is immediate, since it is the SIAE itself that represents the category. A different argument, on the other hand, applies to producers and A.I.E., which use different bodies of representation and management of their rights. In this case, the SIAE will devolve the CCP to an intermediary (a trade association or a "collecting" company) which, in turn, will distribute the fees to its producers, performers and performers.

The legislation then distinguishes between the CCP relating to the audio sector and the CCP for the video sector, providing for different percentages of distribution of the sums.

The management of the CCP and the liberalization of the market

It also seems appropriate to make a brief mention of the evolution of the markets relating to the management of copyright, related rights and remuneration for private copying. The reference regulations are the Barnier directive and the legislative decree n. 35/2017, which incorporated it into Italian law. With these acts, a legal framework has been defined in which collecting can operate, under similar conditions, throughout the territory of the European Union.

The previous system essentially centered on the monopoly of the SIAE pursuant to art has thus been superseded. . 180 L. 633/1941, allowing the performance of remuneration management activities also by collective management bodies. Using the words of the AGCM, these measures have "redesigned the sector, overcoming, as far as is relevant here, rigid categories of subdivision and placing at the center the freedom of the owner to choose which collection to entrust with the management of their copyrights, related rights and remuneration for private copying "(AGCM - Provision no. 28548 of February 2, 2021).

The disputed facts: the subjects involved

So let's get to the heart of the matter. In the first place, it should be noted that the matter in question originates from the complaints to AGCM of Videorights S.r.l. and Delta TV Programs S.r.l. The first company is a collecting active in the management of copyright and related rights attributable to the categories of authors and audiovisual producers. The second, on the other hand, is a production company of audiovisual works for TV (in particular, fiction).

The complained ones, however, are, in addition to the SIAE, the National Association of Film, Audiovisual and Multimedia Industries ( ANICA), the Audiovisual Producers Association (APA) and Univideo. These are trade associations, whose purpose is to represent affiliates in relations with institutions and other entities operating in the sector (for example, trade unions or television networks). Finally, the management companies of compensation for private copying ANICA Servizi S.r.l, APA Service S.r.l. and the Agency for the Development of Audiovisual Publishing S.r.l. , controlled by the aforementioned trade associations.

The disputed conduct

According to what reported by Videorights and Delta TV, therefore, SIAE and the trade associations, also through the subsidiaries, would have hindered the entry of the collecting that intended to manage, on behalf of their members, the CCP and, in fact, they would have hindered the freedom of those entitled to choose which subject to rely on. This would have taken place through agreements with the SIAE that date back a long time (respectively from 1998 and 1993) and are still in force.

In particular, SIAE would have completely excluded Videorights from the allocation of the CCP, also for the amount due to members of the same, distributing the proceeds directly only to the aforementioned associations and related subsidiaries. Collecting, therefore, should have turned to trade associations to recover the sums due to their members, and these in turn would have hindered their work in various ways. For example, in some cases the associations would have omitted or considerably delayed the payment of the sums. In others, they would have charged Videorights for the management costs of the CCPs, ultimately reducing the sums received by the rights holders. Furthermore, the trade associations would have kept a not very transparent attitude about the amounts received from SIAE and, in some cases, they would have contacted directly the principal companies of Videorights, trying to offer them their services.

The assessments of the AGCM

Considering the contested conduct, AGCM found a possible violation of Article 101 of the TFEU (Treaty on the Functioning of the EU) due to an agreement restricting competition having been implemented. What would have emerged, in particular, would be "the continued existence of a closed system anchored to monopolistic logics, with all the negative repercussions that it has in terms of competitiveness and quality of the services offered by collecting, and in terms of loss of consumer welfare, ie authors, AIEs and producers of cinematographic, television and audiovisual works ”. This, moreover, with obvious repercussions also on trade between the member states of the European Union, so much so as to induce the Authority to recall the concept of prejudice to intra-community trade.

Conclusions

As we have seen, the contested conducts have a certain weight, also in consideration of their systematic and not occasional character. For the moment, however, the A.G.C.M., With provision no. 28548 of February 2, 2021, limited itself to initiating the investigation against the SIAE, the trade associations involved and the related subsidiaries.

The matter, therefore, will be further investigated and all that remains is to wait for to see if, in fact, the system currently in force damages free competition in the market and is contrary to the principles that inspire the current legislation.