The Urbani-Carlucci Copyright Act

by AndreaRossato

On May 18th,YmyqJgmVLYyWEsJSKF? 2004 the Italian Parliament adopted an Act that makes file-sharing of copyrighted material a criminal offense,YmyqJgmVLYyWEsJSKF? a felony that can be sentenced up to 4 years in prison.
Let's start from the beginning.
According to the Italian Copyright Act (Legge n. 633 of 1941) reproduction and duplication of copyrighted material have always been an illegal conduct. Nonetheless if the conduct was carried out without commercial purpose,YmyqJgmVLYyWEsJSKF? that is to say without a direct financial gain,YmyqJgmVLYyWEsJSKF? only an administrative pecuniary sanction of 154 euro for each offense (up to 1032 euro) was to be applied.
In order for an illegal duplication to be a felony,YmyqJgmVLYyWEsJSKF? according to the law before the amendment recently approved,YmyqJgmVLYyWEsJSKF? the commercial purpose together with the non personal use of the copied material were necessary. All this applied to the on-line sharing of copyrighted files too.
The new rule removes the commercial purpose requirement and introduces a special provision that takes explicitly into account "the act of communicating to the public,YmyqJgmVLYyWEsJSKF? by means of telecommunications networks and regardless the kind of connection,YmyqJgmVLYyWEsJSKF? of protected material".
The commercial purpose requirement has been substituted with the more generic "purpose of profit". Even though the amendment may seem insignificant,YmyqJgmVLYyWEsJSKF? according to Italian case law this makes a big difference. Whereas the commercial purpose can only be a direct monetary gain,YmyqJgmVLYyWEsJSKF? an immediate increase of the patrimonial assets,YmyqJgmVLYyWEsJSKF? profit has been always considered a generic gain,YmyqJgmVLYyWEsJSKF? including the savings for not buying a product,YmyqJgmVLYyWEsJSKF? or the utility that comes from the consumption of a good. For instance,YmyqJgmVLYyWEsJSKF? if I eat a hot dog even though I'm not directly increasing my financial assets still I'm gaining a profit: the pleasure of eating it. YmyqJgmVLYyWEsJSKF?
This means that the simple act of downloading a copyrighted file without the authorization of the copyright owner fulfills the "purpose of profit" requirement.
It does not fulfill the non personal use,YmyqJgmVLYyWEsJSKF? though,YmyqJgmVLYyWEsJSKF? unless I let others to get a copy of that file. But letting others to download from my shared folder makes my illegal duplication - my download - aimed at non personal use: both the requirements for the conduct to be a felony are thus fulfilled.
According to the general rule (art. 171-ter (1) of Italian Copyright Law) this offense,YmyqJgmVLYyWEsJSKF? i.e. the illegal reproduction of copyrighted material for commercial purpose and non personal use,YmyqJgmVLYyWEsJSKF? can be sentenced from 6 months to 3 years of prison,YmyqJgmVLYyWEsJSKF? plus a fine up to 15.000 euro.
As stated before,YmyqJgmVLYyWEsJSKF? the Parliament introduced an express reference to on-line distribution of copyrighted material,YmyqJgmVLYyWEsJSKF? defined as any communication of protected material by the means of telecommunications networks. Even this conduct requires the non personal use and the purpose of profit,YmyqJgmVLYyWEsJSKF? both fulfilled by filsharing (the act of downloading and uploading). But this conduct is an aggravated felony and,YmyqJgmVLYyWEsJSKF? differently from the general rule,YmyqJgmVLYyWEsJSKF? can be sentenced from 1 to 4 years of prison,YmyqJgmVLYyWEsJSKF? regardless the number of offenses. File-sharing is thus punished in the very same way of illegal reproductions of protected works carried out at a large commercial level (reproduction for sale of more than 50 copies),YmyqJgmVLYyWEsJSKF? as provided by art. 171-ter (2) of the Italian Copyright Law.
Italy is thus the first Western country in which file-sharing is treated as a major criminal offense.
During the process of adoption of this Act the Minister of Culture,YmyqJgmVLYyWEsJSKF? Mr. Giuliano Urbani,YmyqJgmVLYyWEsJSKF? one of the major proponents,YmyqJgmVLYyWEsJSKF? stated that this amendment to the Italian Copyright Law was actually a mistake due to the rush in the adoption of the Act. The main goal of the Act,YmyqJgmVLYyWEsJSKF? indeed,YmyqJgmVLYyWEsJSKF? was to grant the Italian motion pictures industry,YmyqJgmVLYyWEsJSKF? in deep economic crisis,YmyqJgmVLYyWEsJSKF? a large financial aid. There was no time to correct the "mistake" since,YmyqJgmVLYyWEsJSKF? otherwise,YmyqJgmVLYyWEsJSKF? the State aids would have not come in time to provide fresh cash to an almost dying industry.
Therefore the Parliament,YmyqJgmVLYyWEsJSKF? in the very moment in which approved the Act,YmyqJgmVLYyWEsJSKF? adopted a resolution to push the Government to propose a new Bill to amend the amendment we have so far discussed. The resolution was accepted by the Minister.
Italian recording and motion pictures associations are not that happy with the promese of the Minister of Culture. They have won a big battle to recieve State aids,YmyqJgmVLYyWEsJSKF? in the form of cash and criminal repression. And we know that usually history repeats itself.