Copyright and Online Platforms: Why AGCOM Has Become the New Battleground for Businesses in Italy

While comparable to Ofcom in the UK or the FCC in the US in the field of telecommunications, AGCOM holds a unique position in Europe, as it possesses specific, quasi judicial powers to combat online copyright infringement directly. This allows it to issue orders to block access to illegal content without a prior court ruling, making it a strategic body for IP protection in Italy.

To mark the release of I nuovi poteri di AGCOM nell’online e nel diritto d’autore (The New Powers of AGCOM in Online Matters and Copyright), published by Giappichelli and edited by Simona Lavagnini, founding partner of LGV Avvocati, we examined what this shift actually means for businesses.

The book, a joint effort by academics and experts including F. Ferrari, M. Scialdone, S. Ercolani, V. Moscon, F. Morri, C.E. Cazzato, S. Occhipinti, A. Giussani and G. De Cesare, serves as a navigational compass for the new regulations following Directive (EU) 2019/790.

We asked Lavagnini to summarize three key points that every company, whether Italian or international, needs to know today.

1. The book discusses “new powers.” For a rights holder or an online platform, what has changed compared to traditional protection before the courts?

   
   AGCOM’s newly strengthened powers now cover a wide range of areas, from assessing fair remuneration for authors and performers to protecting against online copyright infringement. With regard to the latter, AGCOM’s current authority is the result of a process that has unfolded over nearly fifteen years, driven by the need to respond swiftly to widespread and blatant infringements occurring online. These violations are often pervasive and difficult to counter, yet they can inflict severe harm on rights holders. This context led to the idea of supplementing traditional legal remedies with the intervention of an independent administrative authority possessing strong technical expertise, an authority capable of issuing injunctions to block access to illegal content distributed online.

2. One of the most pressing issues for businesses is efficiency. Why should a company look favorably upon these proceedings before the Authority?

   
   The tools available to AGCOM can be particularly valuable for copyright holders, especially in cases where the primary objective is to halt unlawful activity as quickly as possible, indeed, AGCOM does not have jurisdiction to grant measures other than injunctions, such as damages. Over the years, AGCOM’s injunction powers have become increasingly refined, and it is now even possible, under certain circumstances, to obtain an order within a matter of hours. This is especially useful for live content such as sporting events, major shows, premiere screenings, and similar content. The costs are also generally low, because the proceedings are highly expedited, straightforward and involve limited evidentiary activity, as they typically concern clear and blatant infringements.

3. Looking at the international situation, how does the Digital Services Act fit into this picture, and what should foreign companies operating in Italy expect?

   
   Following the entry into force of the DSA, AGCOM was designated as the coordinator of digital services for Italy, adding this role to its already extensive responsibilities in the digital sector. In this capacity, the authority is the main national point of reference for supervising the application of the DSA, coordinating other competent authorities, primarily the antitrust authority and the privacy guarantor, managing complaints against intermediary service providers, certifying out of court dispute resolution bodies, and recognizing “trusted flaggers,” in addition to imposing administrative sanctions up to the maximum provided for by the regulation. The first implementing measures, including resolutions 282/24/CONS and 283/24/CONS, show a procedural model based on simplification but supported by incisive investigatory and enforcement powers. It is therefore important for companies, including foreign ones, to be aware of AGCOM's role and powers and to manage compliance issues effectively, taking a preventive approach aimed at minimizing risks and critical issues.