An update on the transposition of the Barnier Directive.

The implementation of European Directive 2014/26, known as the Barnier Directive, is increasingly controversial. The directive arose from the need to create a single European copyright management system. The aim of the EU legislation is to harmonize the sector, which is still regulated locally by each country, in order to ensure greater efficiency and transparency for copyright collecting societies towards their members, while also introducing greater liberalization.

On this point, Article 5 of the Community text provides that "rightholders have the right to authorize a collective management organization of their choice to manage the rights, categories of rights, or types of works and other protected subject matter of their choice, for the territories of their choice, regardless of the Member State of nationality, residence, and establishment of the collective management organization or the rightholder." This provision is inconsistent with the exclusivity still granted by Italy, under Article 180 of Copyright Law No. 633 of 1941, to the SIAE. 

The directive intervenes on three fronts.
First, collective management of copyright, or the compensation each artist earns for the reproduction of their works. The most significant and economically significant case is that of music: every reproduction of a song, on the radio or by other means, triggers copyright, which in Italy is "accounted for" by the SIAE, the Italian Society of Authors and Publishers, under a monopoly regime.
The directive's second area of ​​intervention is the management of rights related to copyright. Unlike what still happens with SIAE, the market for related rights has been liberalized, and today the former monopolist IMAIE (Mutualistic Institute of Performing Artists) works together with eight other intermediary firms.
The third and final area of ​​the reform is the granting of multi-territorial licenses for the rights to musical works reproduced online: for example, on YouTube or Spotify.

Italy implemented the directive in 2017, but retained SIAE's exclusive rights to the Italian copyright collecting market. The crux of the matter is Article 4, paragraph 2: "Rightholders may entrust the management of their rights, the related categories or types of works and other protected subject matter for the territories they indicate to a collective management organization or independent management entity of their choice, regardless of the European Union country of nationality, residence, or establishment of the collective management organization, independent management entity, or rightholder, without prejudice to the provisions of Article 180 of Law No. 633 of 22 April 1941, regarding the activity of intermediation in copyright." Article 180 states that "intermediary activity" is "exclusively reserved to the Italian Society of Authors and Publishers."

In June 2016, AGCOM also wrote to Parliament and the Government, noting that "the value and very rationale of the European regulatory framework are seriously compromised by the presence, within national law, of a provision now isolated among member states, which reserves the right to broker copyright to a single entity (SIAE)." 

Something, however, seems to be changing: recently, Culture Minister Franceschini declared that "the government has expressed its willingness to propose to Parliament a law that would allow other collective management organizations to operate in Italy." In reality, this intervention would appear to be partial and, according to many, only aimed at avoiding further infringement proceedings against our country, since it does not envisage a true liberalization but rather a minimal opening of the market only towards other non-profit collective management organizations, namely foreign companies equivalent to SIAE, controlled by artists and publishers. The reform of Law 633 of 1941 would therefore exclude private independent management companies such as Soundreef, SIAE's main competitor in Italy, which currently operates through a British subsidiary to circumvent the monopoly. Furthermore, SIAE already has representation agreements with its European counterparts, by virtue of which each collecting society manages the copyright in their own country on behalf of others. The debate therefore seems destined to continue.