LEGAL NEWS IN THE SPOTLIGHT | Referral submitted to the ECJ on the Italian implementation of the new press publishers’ right

Newsletter n. 91 – December 2023

LEGAL NEWS IN THE SPOTLIGHT

Referral submitted to the ECJ on the Italian implementation of the new press publishers’ right

On 12 December the Regional Administrative Court of Lazio (“Court”) referred to the Court of Justice of the European Union (“CJEU”) three questions of law related to the Italian transposition of the new press publishers’ right introduced by Art. 43-bis of the Italian Copyright Law (“ICL”), which implements Art. 15 of Directive 2019/790 (“Copyright Directive”). In a nutshell, in addition to granting press publishers the exclusive right on their press publications, Art. 43-bis ICL also provides a mechanism to determine the fair remuneration owed to press publishers by Information Society Service Providers (“ISSPs”) for the online use of said publications. To this end, Art. 43-bis ICL assigns to the Italian Communication Authority (“AGCOM”) the powers to (i) adopt a regulation (“Regulation”) – that was finally adopted on 19 January 2023 – identifying the criteria for determining the fair remuneration, (ii) directly determine the amount of the fair remuneration lacking the agreement between the parties and (iii) sanction ISSPs in case of non-communication to publishers and AGCOM itself of the relevant information to calculate said amount. As result of the lodgement of an action seeking the annulment of the Regulation, the Court decided to suspend the proceedings and the effects of the Regulation and sought guidance from the CJEU on whether Art. 15 of the Copyright Directive and EU law prevent the introduction of national provisions which provide remuneration obligations in addition to the exclusive right owned by press publishers and confer upon national authorities powers such as those mentioned above. We now await the decision of the CJEU.