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31 August 2021CopyrightGilberto Cavagna di Gualdana

An overview of Italian regulation on a private copying levy

The regulation on the compensations for the private reproduction for personal use of private copy was introduced in Italy by law no. 93 on February 5, 1992. The law provided for the first time an exception to the exclusive reproduction rights granted to authors, artists and producers, pursuant to the 1941 Italian Copyright Act (law no. 633).

According to this exception, the individual end-user can legally reproduce, for personal use only, “videograms and phonograms” (ie, make a private copy) on the condition that the rights owners are paid a remuneration.

This regulation was successively amended by legislative decree no. 68 in April 2003 (LD 68/2003), which implements the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society and of its related instruments which partially modifies the rules on “private copy”.

The decree amended the prior regulation and introduced new rules into the Italian Copyright Act, in particular the new articles 71-septies and 71-octies and paragraph three of article 182-bis, although the rules provided by LD 68/2003 were based on the same principles as the previous law 93/1992.

In May 2004, a new law, no. 128, was issued in modified paragraph four of article 71-septies, and introduced administrative fines for those who infringe the legal obligations.

Benefit to individuals

According to the current private copy regulation, individuals in Italy can benefit from an exception to the exclusive rights pertaining to authors, artists and producers, ie, make reproduction of private copy without the prior consent (licence) of the copyright owners. This was according to case C‑470/14, Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA), Derechos de Autor de Medios Audiovisuales (DAMA), Visual Entidad de Gestión de Artistas Plásticos (VEGAP) v Administración del Estado, Asociación Multisectorial de Empresas de la Electrónica, las Tecnologías de la Información y la Comunicación, de las Telecomunicaciones y de los contenidos Digitales (Ametic) (2016).

In that case, the Court of Justice of the European Union (CJEU) held that: “Legal persons are in any case excluded from benefiting from that exception and thus they are not entitled to make private copies without receiving prior authorisation from the rightsholders of the protected works or subject matter concerned.”

Conditional benefits

This benefit for individuals is conditional on the following: that the reproduction is made for personal use only, that no profit in generated and that it is not for direct or indirect commercial purposes. The reproduction must also come from lawful sources (in case C‑435/12 ACI Adam BV and Others v Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie vergoedin [2014], the CJEU held that: “Article 5[2][b] of Directive 2001/29 must be interpreted as not covering the case of private copies made from an unlawful source”). The reproduction must also have been made using recording equipment and virgin carriers, for which the private copy levy has been duly paid.

In all other cases, the reproduction of private copy, without the prior consent (licence) of authors, artists and producers, constitutes an infringement of the exclusive right of reproduction granted to them by the Italian Copyright Act.

As Maciej Szpunar, advocate general of the CJEU, stated: “First, given the public interest in access to culture, the possibility of copying a work for one’s own private use is part of the free enjoyment of culture, which the author cannot prevent without encroaching on the user’s rights.

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