An update on the transposition of the Barnier Directive.
There is growing debate surrounding the transposition of European Directive 2014/26, known as the Barnier Directive, which arose from the need to create a single, Europe-wide copyright management system. The goal of the EU legislation is, in fact, to harmonize the sector—which is still regulated locally by each country—in order to ensure greater efficiency and transparency on the part of copyright collecting societies toward their members, while also introducing greater liberalization.
On this point, Article 5 of the EU text provides, in fact, that “rights holders 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, or establishment of the collective management organization or the rights holder.” This provision is not consistent with the exclusive right still granted by Italy to SIAE under Article 180 of the Copyright Law, Law No. 633 of 1941.
The directive addresses three key areas.
First, collective copyright management—that is, the compensation each artist is entitled to for the reproduction of their works. The most significant and economically relevant case is that of music: every reproduction of a song, via radio or other means of broadcast, triggers copyright, which in Italy is “accounted for” by SIAE, the Italian Society of Authors and Publishers, under a monopoly regime.
The directive’s second area of focus is the management of rights related to copyright. Unlike the situation with SIAE, the market for related rights has been liberalized, and today the former monopoly holder IMAIE (Mutualistic Institute of Performing Artists) works alongside eight other intermediary companies
The third and final area of the reform is the granting of multi-territorial licenses for rights to musical works reproduced online: for example, on YouTube or Spotify.
Italy transposed the directive in 2017, but retained SIAE’s exclusive rights for the Italian copyright collection market. The crux of the matter lies in Paragraph 2 of Article 4: “Rights holders may entrust the management of their rights, the relevant categories or types of works, and other protected subject matter for the territories they specify to a collective management organization or an independent management entity of their choice, regardless of the European Union member state of nationality, residence, or establishment of the collective management organization, the independent management entity, or the rights holder, subject to the provisions of Article 180 of Law No. 633 of April 22, 1941, regarding copyright intermediation activities.” Article 180, which states precisely that “the activity of intermediary” is “reserved exclusively for 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 undermined by the presence, within the national legal system, of a provision that is now unique among Member States, which grants a single entity (SIAE) the exclusive right to act as an intermediary for copyright.”
However, something seems to be changing: recently, Culture Minister Franceschini stated that “The government has agreed to propose legislation to Parliament that would allow other collective management organizations to operate in Italy.” In reality, this measure appears to be partial and, according to many, intended solely to avoid further infringement proceedings against our country, since it does not provide for true liberalization but only a minimal opening of the market to other non-profit collective management organizations—that is, foreign companies equivalent to SIAE, controlled by artists and publishers. The reform of Law 633 of 1941 would therefore exclude independent private collecting societies such as Soundreef, SIAE’s main rival in Italy, which currently operates through a British subsidiary to circumvent the monopoly. Furthermore, SIAE already has representation agreements with its European counterparts, under which each collecting society manages copyright in its own country on behalf of the others. The debate therefore seems set to continue.