Legge sul diritto d'autore (Copyright Act), Articles 102-sexies to 102-decies, Online Content-Sharing Services

Article 102-sexies(1) defines a provider of online content-sharing services as an information society service provider whose main purpose, or one of whose main purposes, is to store and give the public access to large amounts of protected works or other materials that its users upload and that it organizes and promotes to make a profit, directly or indirectly.

Article 102-sexies(2) excludes non-profit online encyclopedias and non-profit educational or scientific repositories, open-source software development and sharing platforms, electronic communications service providers, online marketplaces, business-to-business cloud services and cloud services for uploading content for personal use.

The exclusion for online marketplaces and cloud services does not apply where the marketplace or cloud service allows protected works to be shared among several users. Article 102-sexies(3) provides that when such a provider gives the public access to protected works uploaded by its users it performs an act of communication to the public for which it must obtain authorization from the rightholders, including by a license agreement.

Article 102-sexies(4) extends that authorization to acts of users who upload works without acting for commercial purposes or whose activity does not generate significant revenue.

Article 102-septies(1) makes a provider without authorization liable for unauthorized acts of communication to the public unless it shows that it made its best efforts to obtain authorization, made its best efforts to keep unavailable the specific works for which rightholders gave relevant and necessary information, and, after a sufficiently reasoned notice, promptly disabled access to or removed the notified works and made its best efforts to prevent their upload in future.

Article 102-septies(2) provides that a provider that practices or facilitates copyright piracy is never exempt from liability. Article 102-septies(3) requires the provider to give rightholders, promptly and on their request, complete and adequate information on how the paragraph 1 conditions are implemented and, where license agreements exist, on the use of the content they cover. Article 102-septies(4) provides that applying the Title does not lead to a general monitoring obligation.

Article 102-octies(1) applies a lighter test to a new provider that has operated in the Union market for less than three years and has annual turnover below EUR 10 million, which is liable unless it shows its best efforts to obtain authorization and prompt disabling or removal after a sufficiently detailed notice.

Under Article 102-octies(2), a new provider whose average monthly unique visitors in the previous calendar year exceed 5 million must also show its best efforts to prevent future uploads of notified works. Article 102-nonies(1) provides that cooperation between providers and rightholders must not prejudice the availability of works uploaded by users in compliance with copyright, including works covered by an exception or limitation.

Article 102-nonies(2) lets users who upload content they generated rely on the exceptions for quotation, criticism and review and for caricature, parody and pastiche. Article 102-nonies(3) requires providers to inform their users, through their terms and conditions, of the possibility of using works under the exceptions or limitations to copyright.

Article 102-nonies(4) provides that applying the Title does not involve identifying individual users or processing personal data, without prejudice to the General Data Protection Regulation (GDPR) and the Codice Privacy. Article 102-decies(1) requires rightholders who ask a provider to disable access to or remove specific works to state the reasons for the request, makes the decisions on such requests subject to human review, and requires the provider to tell users immediately of the disabling or removal.

Article 102-decies(2) requires providers to set up and make available to users quick and effective complaint mechanisms against a decision to disable access to or remove their uploads, and provides that AGCOM adopts guidelines for that purpose. Article 102-decies(3) keeps the contested content disabled pending the decision on the complaint. Under Article 102-decies(4), the provider's decision on a complaint can be contested by an appeal to AGCOM, without prejudice to the right to go to court.

Article 102-sexies(5) provides that the limitation of liability in Article 16 of Legislative Decree 70/2003 does not apply to the cases the Title covers.

Before its repeal, Article 16 of Legislative Decree 70/2003 provided that a hosting provider is not liable for information stored at a recipient's request on condition that it has no actual knowledge that the activity or information is unlawful and, once aware, acts immediately on communication from the competent authorities to remove the information or disable access to it.

Legislative Decree 50/2024, in force since 2 May 2024, repealed in its Article 3(4) Articles 14 to 17 of Legislative Decree 70/2003. Article 3(1) of Legislative Decree 177/2021 provides that these articles also apply to works protected under the national copyright rules in force on 7 June 2021 and saves the contracts concluded and the rights acquired until 6 June 2021.