Is the practice of publishing extracts of entertainment
TV programmes risky?
In Italy, yes
(in the picture, an example from UK's Daily Mail)
Do the Italian copyright exceptions for news reporting and criticism/review [respectively, Articles 65 and 70 of the Italian Copyright Act] apply to the reproduction and making available on a newspaper's website of extracts of TV programmes having the character of pure entertainment [eg Big Brother]?
As reported by very interesting online resource Marchi & Brevetti, according the Tribunale di Roma (Rome Court of First Instance) the answer is ... NO.
In a decision adopted on 13 July 2016 but only published on 5 October 2016 (18413/2016), the Rome court ruled partly in favour of RTI - Reti Televisive Italiane (owned by broadcasting company Mediaset). It did so in the context of proceedings that RTI had brought against Gruppo Editoriale L'Espresso over the unauthorised reproduction and making available on the website of Italian newspaper La Repubblica of extracts of a number of entertainment TV programmes to which it owns the copyright.
The Rome Court ruled that Gruppo Editoriale L'Espresso had both infringed the claimant's copyright and committed acts of unfair competition, but rejected the claim that it had also infringed RTI's trade marks. All in all, the Court ordered the defendant to remove all relevant videos and refrain from the future upload of any further videos in which copyright is owned by RTI. The Court also ordered the defendant to pay damages for EUR 250k.
Here's what the Court said in relation to copyright infringement.
The EU framework
Following a series of preliminary remarks regarding RTI's ownership of rights, the Rome court held that the defendant would not be eligible for the safe harbour protection for hosting providers within Article 16 of D.Lgs. 70/2003 [by which Italy implemented the ECommerce Directive into its own legal system], as well as Article 17 therein [prohibition of an obligation to monitor]. The reason is that the defendant "selects and directly manages the contents it uploads onto its platform".
The Rome court then turned to the consideration of whether the exceptions for news reporting and criticism/review would apply to the activities of the defendant.
By referring to the decision of the Court of Justice of the European Union (CJEU) in Infopaq, the Rome court noted how the exceptions in Articles 65 and 70 of the Italian Copyright Act have an exceptional and special character compared to the principle according to which the author has the exclusive right to exploit economically his/her work. As such, these provisions must be only applied in the cases expressly provided for by the law and as long as they are justified to protect interests that are recognised by the Italian constitution and have an equal - if not superior - rank to copyright protection.
News reporting?
Unless you're interviewing Merpel
with her breaking news stories,
it's difficult to invoke successfully
This said, the Court also recalled that in ACI Adam the CJEU suggested that copyright exceptions must be applied by courts in compliance with the three-step test in Article 5(5) of the InfoSoc Directive [on this point, ie who the addressees of the three-step test in this piece of EU legislation, see here].
Following this overview of relevant CJEU decisions, the Rome court considered the wording of Articles 65 and 70 of the Italian Copyright Act.
News reporting
In relation to Article 65, the court noted how the first paragraph in this provision limits the application of the exception to the reproduction and making available of "news articles having an economic, political or religious character".
According to the Rome court, Article 65 would be therefore inapplicable [here the reasoning is a bit hard to follow: it is not entirely clear why the court referred to the first paragraph of Article 65, since what was reproduced on La Repubblica was not articles, but rather TV programmes].
Turning to the second paragraph in Article 65 ["The reproduction and communication to the public of protected works or materials used in the context of current events is allowed for the sake of news reporting and within the boundaries of what is needed to inform, as long as the source, including the name of the author, is indicated, unless this proves impossible"], the Court also concluded for its inapplicability, considering that the relevant TV programmes remained available for a long time after their first making available through RTI's TV channels.
Criticism/review
Turning to the exception for criticism/review, the Court also concluded that this would not be applicable because of the commercial character of Gruppo Editoriale L'Espresso's use of RTI's programmes. The Court noted how the defendant had made EUR 17k from the sale of advertising space linked to videos reproducing relevant extract of RTI's programmes.
According to the Court there would be no direct link between the unauthorised use of RTI's videos and the journalistic activity of the defendant. This, in fact, in order to make its own product more appealing from a commercial standpoint, provides readers with a service that goes beyond mere information. The very circumstance according to which RTI's videos are physically located within an autonomous section of La Repubblica's website confirm - according to the judge - that this is a service that is distinct from the information activity carried out by La Repubblica.
But is the publication
of these extracts bad for rightholders?
Some considerations
The decision is interesting for a number of reasons.
First, and to say the least, with this decision the Rome Court has confirmed once again to be particularly sensitive to copyright protection claims [see here, here, here for previous instances].
Secondly, turning to more substantial considerations, at least in the interpretation provided by the Rome Court, the scope of Italian exceptions for news reporting and criticism/review appears fairly narrow.
A related question is whether Gruppo Editoriale L'Espresso could have relied on different exceptions, eg quotation. Also here, the answer appears to be in the negative. As previously reported by this blog in relation to the copyright position of GIFs, in fact, Article 70(1-bis) of the Italian Copyright Act allows online free publication of low resolution or degraded images and musical works, for educational or scientific uses and only where such use is for non-commercial reasons.
Thirdly, while it is true that there is CJEU jurisprudence [note, however, not always consistently] supporting the view that copyright exceptions and limitations should be interpreted strictly and applied in compliance with the three-step test, more recently a line of CJEU cases has also been questioning the compatibility with EU law of the addition - by national legislatures - of extra requirements and conditions for national exceptions, when such requirements and conditions have no correspondence in the wording of relevant exeptions in Article 5 of the InfoSoc Directive. The question that arises is therefore whether the extra requirements provided for in Article 65 and 70 of the Italian Copyright Law - that go beyond the wording of Article 5 of the InfoSoc Directive - are (still) compatible with EU law.
Fourthly, if the one of the Rome Court is the correct approach to the interpretation of Articles 65 and 70, then other newspaper websites should quickly change their policy on publishing extracts of TV programmes. A quick search shows in fact that - not just La Repubblica - but many other newspapers' websites are very keen on publishing extracts of entertainment TV programmes ... An example is Corriere della Sera's obsession with the (entertaining) moods of Italian X Factor's judge Manuel Agnelli: see here, here, here.
Finally, a practical question: is the publication of these extracts really detrimental to rightholders? Or does it rather serve to make a TV programme known to a broader audience and - as result - a potentially higher number of viewers?
If I take my case, the answer seems to be that publication of short extracts by third parties might not be all bad. Quite the contrary, actually.
Being based in the UK, I am prevented from watching Sky Italia (despite subscribing to it). Without Corriere della Sera's extracts I would have not been able to know anything about Manuel Agnelli's X Factor adventure. Thanks to Corriere, not only do I know something about it, but I am also keen to watch X Factor as soon as I set foot in my beloved home country again.