Copyright, even the Council of State rejects Siae’s appeal against the Antitrust

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Definitively rejected by the Council of State the appeal of Siae against the sanction imposed by the Antitrust for abuse of dominant position in the copyright market liberalized by the Barnier directive. The Agcm provision of 28 October 2018 was symbolic in terms of economic entity (just one thousand euros), yet it went to affirm the new sector scenario, which even private entities such as Soundreef had faced. Siae had challenged the penalty for the first time before the Lazio Regional Administrative Court, but the latter had rejected the appeal.

Now the Council of State «in the jurisdictional seat declares the inadmissibility of the incidental appeal and rejects the main appeal and, as a result, confirms the appealed sentence pursuant to the grounds; fully compensates the costs of the judgment of the appeal level between the parties. It orders that the present sentence be carried out by the administrative authority». Only two of the findings made by the Competition and Market Authority were not accepted: that concerning the protection of plagiarism and that on the mandate of online law. The general approach given by the Antitrust to its sanction remains unaffected.

«The negative effects on competition» of SIAE’s conduct, according to the Council of State, «do not appear to have been counterbalanced by advantages in terms of efficiency for the benefit of users (authors, publishers and users), particularly in terms of prices, of choice, quality or innovation: on the one hand, these hypothetical advantages have not been demonstrated, on the other hand, they are disavowed by the finding that the obstacle to the entry of new operators has inevitably produced a limitation of the offer of intermediation services which, as correctly pointed out by the Authority, are characterized by a high technological component, both in the control over the use of the protected works, and in the procedures for allocating rights between the events».

According to the AGCM note of 2018, “the conduct through which SIAE has implemented its exclusionary strategy concern: a) the imposition of constraints in the offer of different services such as to be included in the mandate relating to the performance of the services falling within the reserve exclusivity law in force until 15 October 2017, including services likely to be provided in competition, hindering the freedom of copyright holders to manage their rights at the time of attribution, limitation or revocation of the mandate; b) the imposition of constraints aimed at ensuring SIAE the management of the copyrights of owners not registered with SIAE, even where the latter had expressly expressed their intention not to use the services provided by it; c) the imposition of obstacles in the stipulation by users – in particular, national TV broadcasters and organizers of live concerts – of other license agreements for the use of works with competitors of SIAE; d) the exclusion of competitors from the markets relating to the management of copyright of foreign repertoires».