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The Court of Cassation intervenes again on the subject of copyright.
By Avv. Francesca Sutti and Avv. Giacomo Dalla Valentina
February 4, 2019
A few months after the significant decision by the Italian Competition Authority (AGCM) which found certain abusive practices by the Italian Society of Authors and Publishers (SIAE), already analyzed in this journal, a new ruling, this time from the Third Criminal Section of the Court of Cassation, further defines the boundaries of the regulation of collective management of copyright.
The subject of the judgment issued in November but filed this January (Cass. Pen., Sez. III, n. 1652/2019), concerns the obligations imposed on radio broadcasters regarding the payment of contributions, not only to SIAE but also to the Società Consorzio Fonografici (SCF).
The latter is a consortium company whose purpose is the administration and collective management of rights belonging to phonogram producers.
It should be noted, first of all, that the very establishment of SCF had already been the subject of an AGCM proceeding (n. I-369 of 1999), aimed at determining whether the activities carried out by the consortium were likely to significantly restrict competition; a question resolved in the negative by the Antitrust Authority, which instead found that, through SCF, companies could significantly reduce the costs associated with the management of phonographic rights and the market would likely expand thanks to SCF's potential to reach (also) parties who traditionally exploited such rights unlawfully.
SCF's activity consists mainly in the intermediation of fees due, under copyright law, to artists and record producers, for the public use of recorded music.
It should also be noted that, with reference to radio operators, the collection activity carried out by SCF is complementary – and not alternative – to that of SIAE, to which contributions remain due in any case. It follows that, according to the Supreme Court, both rights must be paid.
And it is precisely on this aspect that the ruling of the criminal section of the Court of Cassation focuses when it states that this relationship between SIAE and SCF would prove, especially for small operators, excessively burdensome and difficult to implement, in light of regulatory uncertainty regarding the requirements for the related contributions.
The case before the legitimacy judges concerned, in particular, a web local radio station, whose main financier had been investigated because the broadcaster had transmitted about four thousand tracks, having paid rights only to SIAE and not to SCF.
That such an omission constitutes a crime had already been affirmed by the Court a few years ago (Cass. Pen., Sez. III, n. 2515/2015): in fact, it would violate the criminal provisions contained in the copyright law, specifically art. 171-ter, whose letter a) punishes with imprisonment from six months to three years anyone who unlawfully duplicates or, by any means, disseminates phonographic or audiovisual content.
In this case, in particular, the defendant was – not without some surprise – acquitted in all three levels of judgment, but not because the failure to pay SCF was not a crime, but due to the lack of the subjective element, that is, the (blameless) unawareness of committing a crime.
First of all, the relevance of the absence of profit motive by the radio broadcaster in question was assessed. This broadcaster merely, in fact, transmitted, free of charge, advertising messages from non-governmental organizations (NGOs). The only form of advertising could at most be seen in the presence of a banner referring to the newspaper and owner of the broadcaster itself.
The possible absence of profit motive could not, however, entirely exclude in toto the punishability of the defendant, since the second paragraph of the aforementioned article 171-ter punishes those who, regardless of profit motive, “reproduce, duplicate, transmit or unlawfully disseminate, sell or otherwise market, transfer for any reason or unlawfully import more than fifty copies or specimens of works protected by copyright and related rights.”
Nonetheless, the Court noted how the overlap of contribution obligations can create, for operators lacking technical expertise or of small size, considerable difficulties in determining whether there is an obligation to make such payment.
Consequently, bearing in mind the “good faith of the defendant”, who moreover had followed instructions provided by SIAE itself (which, it should be noted, often acts as SCF's agent in the collection of copyright), the Court excluded the lack of the subjective element and, consequently, confirmed the acquittal judgment of the lower courts.
The interpretation given by the Court, especially if followed by future jurisprudential practice, endowed with wide margins of discretion in assessing the technical skills of the individual radio operator, would represent, in some ways, a revolutionary precedent and would, in fact, end up lessening the deterrent effect of criminal rules protecting copyright.
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