Andrea Glorioso (sama/at/ and Alceste Scalas (alceste/at/,

Implementation of the Directive

The Italian law implementing the Copyright Directive is known as:

Decreto Legislativo 9 Aprile 2003, n. 68:  Attuazione della direttiva 2001/29/CE sull'armonizzazione di taluni aspetti del diritto d'autore e dei diritti connessi nella societa' dell'informazione. (GU n. 87 del 14-4-2003 - Suppl. Ordinario n.61)

[Legislative Decree of April 9th, 2003, no. 68:  Implementation of the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.]

The law has been effective since April 29, 2003.  A copy of the law is available at:

A compressed archive with the text of the law (one PDF file per page) is also available at:

The pathological slowness of Italian bureaucracy and political institutions seems to have caused the implementation to have been five months late. The first draft of the law became public quite early (July 2002), but it was approved only on March 28, 2003.

The debate on the Directive doesn't seem to have interested the Parliament, excluding a small minority of deputies and senators. Furthermore, nobody in the Government (that produced the decree implementing the Directive) cared about the warnings from several people and associations that are described later in this chapter.

Exceptions and limitations

Most of the exceptions in Article 5 of the Directive have been fully implemented in the Italian decree (or were already provided by Italian copyright law). It is necessary, however, to make some notes:

Art. 5.2(a): “reproductions on paper or any similar medium” are limited to 15% of the whole work. The "fair compensation" must be provided by those who make the reproduction equipment available: they must pay a bill for every page being copied. There are a few exceptions for public libraries: they must pay a fixed annual bill (instead of the per-page one), and the 15% limit doesn't apply to rare works. All these limitations, however, already existed in Italian copyright law before the implementation;

Art. 5.2(b): “reproductions on any medium made by a natural person for private use” are allowed as long they are performed by the person herself (without the help of third parties), and as long as the reproduction does not imply the circumvention of effective technological measures. The “fair compensation” for right-holders has been implemented as a bill on devices such as blank CD-ROMs, hard disks, VCR equipment.

Art. 5.3(d): “quotations for purposes such as criticism or review” are allowed, but they must not have commercial purposes when performed for scientific research and teaching. This is introduced by s. 9 of the Italian implementation, which modifies the old copyright law (no. 663, April 22, 1941). The old law, however, allowed quotations without referring at all to their “non-commercial purposes.”  The implementation introduces a clear limitation to the old exception's extent, and the reason of this change cannot be justified by the need to fulfil the European Directive;

Art. 5.3(g): “use during religious or official celebrations organised by a public authority” is not mentioned in the Italian implementation, but the existing copyright law stated that the musical bands of the Italian army are allowed to execute copyrighted works without any “fair compensation” for right-holders (as long as the exhibition has no commercial purposes);

Art. 5.3(h): “use of works, such as architecture or sculpture, made to be located in public places” is not mentioned;

Art. 5.3(i): “incidental inclusion of a work in other material” is not mentioned;

Art. 5.3(j): “use for the purpose of advertising the public exhibition or sale of artistic works” is not mentioned;

Art. 5.3(k): “use for the purpose of caricature” is not explicitly mentioned, but it is regarded by the copyright law as “quotation for criticism” (see above);

Art. 5.3(l): “use in connection with the demonstration or repair of equipment” is not mentioned;

Art. 5.3(m): “use of an artistic work in the form of [...] a drawing [...] for the purposes of reconstructing the building” is not explicitly mentioned, but the existing copyright law excluded plans of buildings from the exclusive reproduction right.

There are also some (formal) exceptions and limitations to the extent of effective technological protection measures. For further details, see section {11}.

As a final note, the implementation remarks that all the exceptions provided by the law could be applied only as long as they don't conflict with the normal use of copyrighted works, and don't cause unjustified prejudice to rightsholders.

Technological protection measures

The Directive requires “adequate legal protection against the manufacture, import, distribution or provision of services” which are primarily designed to circumvent TPMs. This provision has been almost literally copied into the Italian decree.

But the place in which it has been copied is important. The old Italian copyright law contains a section (173-bis) that assigns the same penalty to a list of copyright infringements – but the penalty is only prescribed when these infringements are performed for commercial non-personal uses. Sections 26 and 27 of the Italian implementation (see above) just add the Directive provision at the end of that list.

After the new decree, the Italian copyright law says that “it is punished, if the act is committed for non-personal use, [...] anyone who with commercial purposes [...] gives over on any ground [...] devices [...] or provides services [...] primarily designed [...] for facilitating circumvention”.

There is no clear punishment for non-commercial distribution of circumvention devices. The reason for this choice can't be related to a rationale of the Italian copyright law, since the old law still had an section (s. 171) that prescribes sanctions for various non-personal infringements (e. g. unauthorised distribution of copyrighted works), without making any distinction between commercial and non-commercial purposes; this section, however, has not been extended to cover the distribution of circumvention devices.

It makes the Italian copyright law logic hard to understand: there is a sanction even for purchase, hire or personal use of circumvention devices (154€, see above), but there is no penalty for the non-commercial distribution or acquisition of such devices. It is hard to guess how the law will be interpreted in a court.  When considering the rationale of the Directive, there is the risk that the sanctions for “commercial, non-personal” infringements will be considered as sanctions against “commercial or non-personal” distribution of circumvention devices.


There are a few exceptions and limitations to the protection of technological protection measures, even if their extent is very limited, and their utility is questionable.  Specifically, the Italian implementation says that:

1.       TPMs should allow people to make one private copy (even if analogue) of the works they've had legal access to, as long as it doesn't interfere with the normal use of the works themselves, and doesn't cause unjustified prejudice to rightsholders;[1]

2.      TPMs must be removed if it is required for public security, or in order to allow administrative, parliamentary or legal proceedings;

3.      rightsholders are required to adopt suitable solutions and agreements, to allow people and institutions to obtain the exceptions they are entitled to (for example, to allow visually impaired people to reproduce a protected e-book using a different format, in order to process it with a speech synthesiser).[2]

Nobody, however, is allowed to circumvent TPMs, even if they forbid, for example, making a private copy.

Furthermore, when people are dissatisfied with the “suitable solutions” in point 3 above, any dispute caused by TPMs must be evaluated by the Permanent Copyright Consulting Committee, which will try to mediate between the conflicting interests of users and rightsholders. If this mediation fails, the dispute will be passed to the normal legal system.

The Permanent Copyright Consulting Committee already existed in Italian copyright law, and is nominated directly by the Prime Minister every four years. Until now the Committee had mostly bureaucratic and technical consultation functions, but the implementation gives it a new role: the mediation of disputes between users and rightsholders.

This approach has two fundamental flaws:

1.       the Committee is a centralised authority that will handle disputes from the whole nation, causing bureaucratic delays and complications that will discourage people trying to defend their rights (the same critique has been raised about the English law proposal that implements the Directive[3]);

2.      as far as the law prescribes, the Committee members only come from the entertainment and copyright industries, without any users’ representatives; it is going to mediate in disputes regarding a matter in which it cannot be impartial, due to the evident conflict of interests.

Interoperability and research

The existing Italian copyright law provided the right to study and reverse-engineer a program to ensure interoperability (as required by the Software Directive), and section 23 of the Copyright Directive implementation, after defining technological protection measures, explicitly says that all the reverse-engineering guarantees are still valid. Thus, the law punishes circumvention, but allows reverse-engineering for interoperability. When the first cases arise, the legal uncertainty will benefit the parties with the strongest legal support.

When dealing with scientific research, the situation is even worse: Italian copyright law only justifies reverse engineering for interoperability purposes, and it doesn't guarantee the right to communicate the information obtained in the process – unless it is necessary to ensure the interoperability of a computer program. It means, for example, that the mere distribution of the results of cryptographic research on a technological protection measure could have been prohibited by a rightsholder, even before the Directive’s implementation. With the new decree, the distribution of such information (that could be considered as a “provision of a service designed to facilitate circumvention”) is further limited at least for non-commercial purposes.


The implementation does not seem to take users’ privacy into particular account. There is (and there was before the Directive was created) a National Privacy Committee which should handle all cases of privacy violation, which are covered by a specific law (n. 675/96). However, even if we can reasonably expect the Italian implementation to raise serious privacy concerns, the Privacy Committee is already severely understaffed and it is plausible that it will not be able to handle additional load.

Enforcement and penalties

The penalties for infringing copyrights and circumventing controls are provided by sections 26, 27 and 28 of the Italian implementation, which in turn modify the old Italian copyright law.

Sections 26 and 27 cover the penalties for infringements performed for commercial non-personal purposes.

The penalties are the same as the old Italian copyright law, which already had provisions for commercial non-personal copyright infringement; these penalties, however, have been extended to the new felonies introduced by the Directive. The sanctions apply to:

·         the commercial manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the commercial provision of services with the aim of facilitating the circumvention of TPMs

·         the removal of rights-management information, when made for commercial non-personal purposes, and the commercial distribution, importation for distribution, broadcasting, communication or the act making available to the public works from which electronic rights-management information has been removed or altered

All the penalties are listed in law no. 663, April 22, 1941, s. 173-bis. Specifically, the law prescribes:

·         from six months up to three years of imprisonment, that becomes from one up to four years when there is an active organisation with the aim to infringe the law, or when the infringement is performed in the context of a legal commercial activity;

·         a sanction from 2,500—15,000€;

·         suspension (for a period from one month up to five years) of the license for every activity related to the infringement (for example, dealers who trade in circumvention devices have their business closed);

·         suspension from executive and representative roles both in commercial companies and political life;

·         publication of the sentence in at least one newspaper with national circulation, and one or more specialised magazines;

·         suspension (for at least one year) of the ability to obtain commercial or radio/television broadcasting licenses;

·         a further monetary sanction for every item being abusively duplicated or reproduced.

The law, however, also says that these penalties (with the exception of point no. 7 above) may be reduced when the infringement is particularly tenuous.

Moreover, s. 28 of the implementation adds a new section to the old Italian copyright law, introducing new sanctions for some infringements made for personal and non-commercial purposes.

The new section covers:

·         abusive utilisation, duplication or reproduction of copyrighted works protected by TPMs;

·         purchase or hire of devices made to circumvent TPMs;

·         purchase or hire of devices and items on which the "fair compensation" bill has not been applied.

The meaning of “abusive” in point no. 1 above is not defined, but it could be deduced from the TPM definition on s. 23 of the Italian implementation: it indicates any action that has been forbidden by right-holders by using TPMs (for example, printing an encrypted e-book, or skipping the advertisement at the beginning of a DVD movie).

The penalties prescribed for these offences are:

·         a monetary sanction of 154€;

·         sequestration of the offending material;

·         publication of the sentence in a newspaper with national circulation.

For habitual offenders and grave infringements, the decree also prescribes:

·         a monetary sanction up to 1,032€;

·         publication of the sentence in at least two newspapers with national circulation, and at least one magazine specialised in the entertainment field;

·         in the case of business activities, the revocation of commercial and radio/television broadcasting licenses.

The national debate

The debate about the Italian implementation suffered, as often happens in Italy, from a lack of communication between the Parliament and civil society.  Despite efforts by several non-profit organisations, the legislative decree proposed by the Italian government was accepted by the Culture Committee of Parliament.[4]  First and foremost among these organisations was the Associazione Software Libero (AsSoLi,, which kept contacts with political representatives in order to make Italian politicians aware of the perceived perils of the Directive. 

The parliamentary debate was not held in the Parliament at large but mainly in the Culture Committee.[5]  The discussion began on February 13, 2003.[6]  The spokesperson was Guglielmo Rositani (AN).[7]  The presentation of the decree focused on a brief explanation of its goals (integrating the existing Italian legislation as far as the rights of reproduction, communication and distribution of works are concerned). Rositani stressed the inclusion of Internet communications as far as the above mentioned rights were concerned, and the introduction of new rules to cope with technological advances. Of particular interest, in the context of the public debate that preceded and accompanied the parliamentary acceptance of the legislative decree, is s. 39, which dictates what is considered "fair compensation" for private copies (this was a point the public debate was particularly sensitive to).[8]

The debate was then postponed to February 18, 2003[9], when Franca Chiaromonte (DS)[10] noted that technological innovation had produced a profound change in how culture is perceived, used, and made. In this context, she feared that droit d'auteur could be overly damaged, but at the same time she expressed the feeling that a balance should be found, in order to avoid more rights being bestowed only to those who already have them and forgetting about those who currently don't.

Chiaromonte's opinion was that this balance would be possible only by "rooting [droit d'auteur] inside the innovation processes". She expressed the conviction that this legislative decree should be just the start, and that a "coherent and progressive adjustment of the Italian and European laws" will be necessary. Finally, she stressed the subject of "fair compensation", and the negative reaction it produced in the civil society: although she recognised the principle as valid, Chiaromonte recalled a proposal by the DS party to create a ministerial fund which should promote young artists, financed through a quota of SIAE funding collected thanks to the “fair compensation”. There were other small interventions, not particularly important for the subject at hand.[11]

The debate was then postponed to February 20, 2003[12] when the spokesperson proposed a text to be presented to the Government by the Committee. The text stressed (amongst other points):

·         the opportunity to have a strong protection of droit d'auteur and related rights, in the “interest of authors, interpreters, executors, producers and consumers”;

·         the importance of the “fair compensation” disposition which will “guarantee the involvement of the users of intellectual and artistic products in sustaining and promoting creativity and cultural production”;

·         the obligation to reserve at least 20% of the income derived from “fair compensation” to a fund for promoting and supporting musical activities as well as those activities which cannot currently use existing resources (such as the “Fondo Unico per lo Spettacolo”, literal translation “Unique fund for performance works”);

The text gave a positive opinion about the legislative decree[13], with some proposals for modifications to the original text.

The proposal by the spokesperson was then discussed on February 25, 2003[14], when the spokesperson himself presented a slightly modified proposal.[15]  Titti De Simone (PRC)[16] presented an alternative text[17] to be debated by the committee; she also stated that her party wouldn't vote for the current proposal.

Titti De Simone's proposal contained many criticisms of the original proposal, including:

·         the “high level of protection” which the legislative decree talks about is not actually protecting authors, but the media majors;

·         the decree doesn't consider the new forms of distribution, such as "copyleft", which guarantee the moral rights of the authors and do not limit the private, non-commercial uses of the works[18];

·         the vast diffusion of literary, musical, visual and multimedia works, made possible thanks to the "digital revolution", did not hinder but actually helped selling the original works;

·         protected works as per s. 23 (which gives rightsholders the possibility of adopting “technological means of protection”) already have an intrinsic expiration date, because they depend on proprietary formats, specific operating systems and hardware, which in the future will be obsolete or not longer available; the legal and technical impossibility to transfer the aforementioned works to another format will produce an “attack on our cultural memory”;

·         s. 28 punishes “private” and “security” copies;

“fair compensation” causes a plethora of problems, amongst which:

·         it causes a grave economic prejudice to the production of “private copies”, even though “private copies” are allowed by the very same Directive which is being implemented;

·         it is applied without regard to specific cases (as considered by the Directive) and in an indiscriminate way, so that even people who reproduce personal works are subject to the “fair compensation” (in the form of more expensive blank CDs, for example);

·         it will favour criminal organisations that deal with copied CDs and tapes, which will become even cheaper than the original;

·         it will place a noticeable burden on the Public Administration, which uses digital formats and will have to pay for the “fair compensation” – in the end, it will be citizens at large who will pay for it;

·         the 15% limit to copies made in public libraries is too strict and has already caused many interpretation and implementation difficulties, which in the end will damage public usage of libraries;

·         research is seriously hindered by the proposal (for example, copying a scientific article that constitutes more than 15% of a piece of work);

In the end, Titti de Simone expressed her (and her party's) negative opinion.

After Titti de Simone spoke, the Committee drafted up and voted on a modified proposal.[19]  This was basically identical to the original from Guglielmo Rositani (AN) with the following notable exceptions:

·         as far as “fair compensation” for printed works reproduction is concerned, the Committee suggested a fixed price scheme until the implementation of a working and practical model which more closely followed the legislative decree;

·         as long as the legislative decree won't be effective, the Committee suggested the adoption of the transitional regulation, in order to avoid legal problems in the day-to-day work of those businesses which sell or deal with recording and reproduction devices.

It should be noted that none of Titti de Simone's proposals were accepted.

The parliamentary debate demonstrated the lack of a thorough understanding of the problems involved, and the tendency to address a hard problem – how to adapt droit d'auteur and related rights of the new “digital era” – with old solutions.

It should be noted that Titti de Simone's proposal was the one which best addressed the actual problems – without having to agree with it. It's possible, by reading the full parliamentary reports, to notice a thorough attention towards existing bureaucratic organisations (such as SIAE) and a formal, but not real, attention towards users’ and small producers’ rights regarding the implementation.

The debate in civil society was, as one would expect, much more focused on these issues. There were two distinct aspects that worried the various civil organisations and citizens who participated in the debate:

1.       the "fair compensation" issue, and the consequent indiscriminate raising of prices on copy-enabled media;

2.      the "DMCA perils", i.e. the problems that the U.S. law with the same background produced that are likely to result from the Directive;

As far as point (1) is concerned, several organisations and newspapers raised the issue, with a specific focus on how blank CD prices would be raised in an indiscriminate way, as a sort of preventive tax to cover the “fair compensation” costs:

AFDigitale was the first organisation to launch the alarm about the possible (and very real) effects of the implementation on the prices of copy media. 

Altroconsumo is a non-profit organisation that focuses on consumers' rights. The article reported in the above URL focuses on the higher prices for CDs. 

"Liberazione", a printed newspaper, published on 21 August 2002 an article about the raising of prices for CDs and audio tapes.

"" is a mailing list, promoted and hosted by AsSoLi, which focuses on the legislative and juridical aspects of libre software use and production. The above URL links to a report, made by Stefano Maffulli, of a meeting held on 28 October 2002, at SMAU in Milan. The title of the meeting was "Droit d'auteur and information society: the law-makers at a fork of the road". Pietro Folena (DS), Mr. Laurenzi (director of SMAU), Mr. Giardina (AFDigitale) held the main discussions. 

The central point discussed at the meeting was, as Stefano Maffulli reported it, the exact definition of "fair compensation" and its implications for industry and consumers. The problems raised were very complex and not addressed nor resolved at all by the legislative decree and the committee work. Amongst them were the problem of estimating in a precise way the costs of unauthorised copies, the real possibility of importing blank CDs and other media from EU countries where the "fair compensation" costs are lower than in Italy, and the fact that imposing a hidden tax – in the form of raising CD prices – to all consumers, without proving that all consumers are making unauthorised copies, is a completely broken and, to many extents, not so lawful idea.

On the "" there was a very long discussion, archived starting from the above URL, on the subject of copying, authorised or not, the rise of prices for copy media and the inherent injustice of the "fair compensation" as it is applied in Italy. 

An Italian summary of the above discussion can be found at the following URL:

This article, by Gianfranco Giardina, explained in very precise terms the possible economic effects of the implementation as intended by the governmental decree. 

As far as point (2) is concerned, the vast majority of discussions were held on, or inspired by, the mailing lists created by AsSoLi:

AsSoLi promoted a campaign to make people aware of the perils of the Directive,[20] and created an ad-hoc page to act as central point of reference:

The seminal work by AsSoLi, and specifically the analysis by Alceste Scalas,[21] was the basis for a great[22] deal of discussion on the Internet:

This mail message by Adriano Sponzilli, and the following thread, reported on a French article about the possible effects of the Directive on scientific publications and the resulting difficulties in widespread communication of experimental results and theoretical articles, which is a basic need for scientific research to proceed.

This article, by Edoardo Dezani, reported the possible effects of implementing the Directive on libre software development; amongst which, one of the most serious is the legal impossibility of studying how a particular piece of software works, in order to create compatible or inter-operable programs without having to pay huge fees to the original authors (fees which libre software projects can very rarely afford).

This article also reported on the possible effects of the Directive on libre software development, with a particular focus on how the DMCA already has hindered or threatened to hinder libre (and non libre) software development in the US – as a study by the Electronic Frontier Foundation reported – as well other effects which the Directive could have, consciously or not, on practically every field in which software plays a role.

An open letter by Adriano Sponzilli to all Italian deputies, to make them aware of the perils of the Directive and the necessity to further study it and strike a balance between the various interests involved, with the help of the civil organisations which are most active on the issue.

The letter was signed by 34 associations and by more than 1.000 private citizens:

The latter URL can be used as a reference to see how many and which organisations were involved in the debate around the Directive, with the obvious caveat that the aforementioned URL simply shows who signed the petition by AsSoLi and nothing more.

This mail message reports the text of an article, published on "L'Unita" by Pietro Folena (DS). The article presented, in the form of a short quasi-SF story, the problems and the perils which could result from the implementation and the vast assignment of rights to producers away from consumers.

This small editorial, on the portal of the City of Ferrara, reported on the various perils which the Directive could produce, ranging from the rise of prices for blank CDs to legal problems which software developers could face. The cases of Dmitry Sklyarov (arrested in the US for the supposed crime of circumventing Adobe E-books copy protection) and Jon Johansen (the supposed author of the DeCSS code, which allows people with GNU/Linux or “alternative” operating systems to watch the DVDs they legally bought) were cited.

Notwithstanding the thriving debate which was held outside of the Parliament, and even though AsSoLi contacted many political representatives in order to make them aware and provide them with the technical expertise in the field – which the committee members somewhat lacked – the actions by Italian civil society didn't seem to have a perceivable impact on the Committee decisions (aside from Titti de Simone's proposal).

Particularly dissatisfying was the position of the DS party, which was contacted on many occasions on this and other related issues, and had expressed interest for libre software users’ and producers’ positions (as well as those of the general public, which is being penalised by “fair compensation” first and foremost and by all the other DMCA-like effects of the Directive, even if indirectly).

[1] This is one of the aspects of the law that has changed for the worse: the early drafts of the decree were much more definite, and required that all TPMs always allow at least one personal copy (without the "even if analogue", "normal use" and "unjustified prejudice" mentions).

[2] Here is another negative evolution of the decree: early drafts explicitly required right-holders to remove TPMs when it was necessary to allow people and institutions to obtain the exceptions they are entitled to.

[3] Critique of the Proposed UK Implementation of the EU Copyright Directive (by Julian T. J. Midgley):

[4] With the notable exception of the PRC party (see below).

[5] The Constitutional Affairs Committee of the Senate was asked for an opinion on the legislative decree, but this is a formality when European directives are being implemented.

[7] AN is the acronym for Alleanza Nazionale, a right-wing party which is currently a member of the governing alliance (composed of Forza Italia, Lega Nord/Padania, Alleanza Nazionale, UDC and some other smaller parties).

[10] DS is the acronym for Democratici di Sinistra, a social democrat party that is currently a part of the parliamentary opposition (together with many other parties).

[13] Which, it should be remembered, was a governmental proposal.

[16] PRC is the acronym for Partito della Rifondazione Comunista, a left-wing party which is currently in opposition.

[18] It should be noted that Titti de Simone did not fully explain the implications of copyleft as far as commercial distribution and use is concerned.

[22] The word "great" should be read considering the usual attention given by Italian civil society to European directives and national laws (quite low) and the fact that the Directive deals with something that, although it can have very concrete effects, is quite abstract – droit d'auteur and related rights.