pts.
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On 12th December 2021, Italy transposed the provisions of the CDSM Directive through the Legislative Decree 8 November 2021, n.º 177.
Procedure:
In April 2021 the Italian Senate adopted a delegation law authorizing the government to implement the directive without further parliamentary deliberation. The only opportunity that stakeholders received to participate in the implementation discussions was through a series of informal hearings in the Senate, before and after the adoption of the delegation law. The government did not organize any public consultation before starting to draft the law, and has not provided stakeholders with opportunities to provide feedback on the draft law.
Article 17:
The Italian implementation of Article 17 does not contain any specific ex-ante safeguards for users rights, requiring disputed uploads to stay down during the complaint procedure. It also does not contain additional transparency provisions nor does it narrow down the definition of platforms affected by these rules. Furthermore, it claims that users can rely on a non-existing parody exception.
Other:
The education exception is not subject to remuneration, but it only covers uses of parts of protected material and, for materials intended for the educational market and sheet music, the exception only applies if there are no adequate licenses available in the market. The fallback exception for out-of-commerce works in Article 8(2) CDSM has only been implemented for software and databases, which is contrary to the text of the Directive that applies the exception to all types of works. Article 14 has been implemented in the copyright law, but the limitations provided in the Cultural Heritage Code (allowing the use of cultural heritage in the public domain only for non-commercial purposes and providing, in case of commercial purposes, for a request for authorisation and payment of a fee to the cultural institution) remain and have been expressly safeguarded in the implementation.
The implementation of Article 15 includes all the limits foreseen in the DSM Directive: scientific and academic publications are excluded from the definition of press publications; the right does not apply to the use of individual words and very short extracts, to private or non-commercial uses by individual users, nor to acts of hyperlinking; the right cannot be invoked against uses authorized by a non-exclusive license nor against the use of public domain works; and the right is subject to the exceptions and limitations to copyright laid out in the national law.
Bonus:
The Italian lawmaker went beyond what was mandated by the CDSM Directive on the implementation of the text and data mining exception for scientific research purposes (Article 3). Making use of the policy space available under the scientific research exception in the InfoSoc Directive (Article 5(3)(a)), the new Italian exception covers not only the acts of reproduction and extraction from copyrighted materials, but also the act of communication to the public of the research outputs, which is essential for disseminating such outputs and supporting collaboration between researchers.
The Italian government has received full powers from the Senate to implement the Directive without further parliamentary deliberation. The government did not organize any public consultation before starting to draft the law, and has not provided stakeholders with opportunities to provide feedback on the draft law. The resulting law is one of the most unbalanced implementations we have seen so far.
The law fails to implement exceptions that are mandatory under the directive (the fallback exception for out-of-commerce works in Article 8(2) and the parody exception in Article 17(7) CDSM), but goes beyond the minimum standard mandated by the DSM Directive for the implementation of the text and data mining exception for scientific purposes, covering the act of communication to the public the research output as permitted by the InfoSoc Directive. Article 14 is implemented in a way that does not ensure that reproductions of Public Domain works of visual art cannot be taken out of the public domain, since it excludes them from copyright protection but allows their use to remain subject to limitations under cultural heritage laws. The transposition of Article 17 does not contain any specific ex-ante safeguards for users' rights, requiring disputed uploads to stay down during the complaint procedure.
The press publisher right is implemented with all the limits foreseen in the Directive.
Local partners: Our local partners have been Wikimedia Italia and Creative Commons Italy.
For more information, please see our implementation tracking page for Italy.
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