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The New Anti-piracy Law and the Penalty for Users of Pirated Audiovisual Content

posted 4 months ago

Law No. 93 of 14 July 2023, laying down provisions for the prevention and suppression of the unlawful spread of copyright-protected content via electronic communication networks, has been published in the Italian Official Gazette and will be in force from 8 August 2023. Among the provisions, we may point out hefty administrative fines by the aggravation of the administrative penalty of up to EUR 5,000 for users of pirated audiovisual services.

The administrative offence punishing the users of pirate services

In fact, the use of illegal decoders, websites or IPTVs to watch audiovisual content or sporting events is an administrative offense, now even more harshly punished by Article 174 Ter of the Copyright Act, which the new Anti-Piracy Act has just amended.

The systems used by the users of pirated audiovisual services are well known, from the illegal decoder to the applications installed on smart TVs: in both cases, the view of a movie or a sporting event is abusive because the legitimate offer was not accessed and the pirated systems were used, using an artificial decoder or subscribing to an abusive subscription at a cost significantly lower than the official offer, thus violating the rights of all copyright holders, producers, publishers, authors and artists.

The law also provides that the offence is punishable by the confiscation of the equipment and the publication of the measure in two or more national daily newspapers or in one or more magazines focused on the entertainment sector. Therefore, the user who has abusively enjoyed large quantities of films, TV series and sporting events may receive from the Police Forces in charge of ascertaining and notifying the violation, that is to say, the Italian Finance Police and the Postal Police, the infliction of an administrative sanction of up to 5,000 euro, with the annexed data to proceed with the payment in addition to the aforementioned accessory penalties, confiscation of the instruments and publication of the measure in two or more national daily newspapers or in one or more magazines focused in the entertainment sector.

The identification of the user is accomplished by investigating the pirates who provided the services to their customers; for example, by analysing the data of payments made.

Supranational legislation

National acts of law have always adopted international treaties and numerous European directives in this area. Most recently, we may recall the European Recommendation of 4 May last year on fighting online piracy of audiovisual content, theatrical and live performances, including sporting events, in which the European Commission encouraged Member States, national authorities, rights holders and intermediary service providers to “take effective, balanced and appropriate measures to counter unauthorised retransmissions of illicit streaming”.

Reasons underlying the punishment of pirated audiovisual services users

The reasons for the regulatory drives underlying the severe punishment of piracy and users of pirated services are manifold, since copyright infringement produces severe damages, as analysed by IPSOS surveys conducted for FAPAV – the Federation for the Protection of Audiovisual and Multimedia Content Industries. In 2021 the estimated damage on the Italian economy in terms of GDP was approximately EUR 716 million and the estimate of lost tax revenues (VAT, income, and corporate taxes) was approximately EUR 319 million.

Within the audiovisual industry, the estimate of the potential damage in terms of lost turnover directly due to the missed enjoyment of pirated movies and series/fiction was EUR 673 million with almost 72 million lost sales.

Furthermore, piracy is not only a brake on the country’s development and serious damage to the creative industry, but also puts employment at serious risk: it was estimated a loss of around 10,000 jobs. Indeed, a lot of workers are involved in the making and broadcasting of films, TV series or sporting events, and due to piracy, these workers lose or risk losing their jobs.

Similarly, the high piracy rate negatively affects the production of new films, TV series and sports events, depriving the sector of the sap necessary for future investments and ultimately affecting the whole community, which will have to give up the quality and quantity of the legitimate offer it has been accustomed to.

The alarming consequences do not only concern the economic and industrial side, but also the security of the users of pirated services: many are the risks linked to cyber-attacks with breaches of personal and banking data, as well as dangers on devices through malware and viruses, given that piracy is often run by criminal organizations, including transnational ones.

Therefore, the lawmaker considered that the parasitic phenomenon should be hit on both fronts: the pirates’ one, by criminal offences punishing criminal conduct, and the user’s one by the infliction of the administrative penalty.

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