p2pnet.net News:- On May 18 Italy’s Parliament adopted an act which makes file sharing a criminal offense that can draw sentences of up to four years in prison.

In the process, Italy gained the distinction of becoming the first Western country in which file-sharing is treated as a major criminal offense.

But it seems it was all one, big mistake.

Dr Andrea Rossato, assistant professor of law at at the Faculty of Engineering, University of Trento, Italy, spells it out for p2pnet readers.

Now read on >>>>>>>>>>>>>>>

Italy’s draconian copyright law
By Andrea Rossato – University of Trento

Let’s start from the beginning.

According to the Italian Copyright Act (Legge n. 633 of 1941), reproduction and duplication of copyrighted material has always been illegal. Nonetheless, if it was carried out without commercial intent, that’s to say without a direct financial gain, only an administrative penalty of e-154 (about $185) for each offense (up to e-1032, about $1,243) could be applied.

Before the amendment, for illegal copying to become a felony, intent to use the copy commercially had to be proven, and the same criteria also applied to sharing copyrighted files online.

The new law, however, removes the ‘commercial purpose’ requirement and introduces a special provision that takes into account, explicitly, “the act of communicating to the public, by means of telecommunications networks and regardless the kind of connection, of protected material”.

The ‘commercial purpose’ requirement has been substituted with the more generic “purpose of profit”. Even though the amendment may seem insignificant, according to Italian case law, this makes a big difference.

Whereas the commercial purpose can only be a direct monetary gain, an immediate increase of the patrimonial assets, profit has been always considered a generic gain, including the savings for not buying a product, or the utility that comes from the consumption of a good.

For instance, 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.

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 ‘non-personal’ use, though, unless I let others to get a copy of the file.

But letting others to download from my shared folder turns my illegal duplication – my download – into 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, ie, the illegal reproduction of copyrighted material for commercial purpose and non-personal use, can draw sentences of from six months to three years in prison, plus a fine up to e-15,000 (about $18,000).

As I said earlier, Parliament introduced an express reference to on-line distribution of copyrighted material, 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, both fulfilled by file sharing (the act of downloading and uploading).

However, this conduct becomes an aggravated felony and, differently from the general rule, can mean prison sentences of from one to four years, regardless of the number of offenses.

File-sharing thus becomes the same as illegally copying protected works at a commercial level (reproduction for sale of more than 50 copies), as provided by art 171-ter (2) of the Italian Copyright Law.

It was all a mistake …
During the process of adoption of this Act, Italy’s minister of culture, Giuliano Urbani, one of the major proponents, said the amendment was a ‘mistake’ which was added in because of the way the act was rushed throgh parliament for adoption.

The main goal of the Act, indeed, was to grant the Italian motion pictures industry, currently in a deep economic crisis, financial aid and there was no time to correct the “mistake” without getting in the way of what was intended to be an injeneciton of provide fresh state cash for Italy’s beleagured movie-makers.

Therefore Parliament, at the very moment it approved the Act, adopted a resolution to push the Italian government into proposing a new Bill to amend the amendment discussed above.

The resolution was accepted by the Minister.

Italy’s recording and motion pictures associations aren’t that happy with the promise of the Minister of Culture to remove the “mistake”.

This time, they won their battle to receive State aids, in the form of cash money and criminal prevention.

Are they going to loose next time?

This entry was posted on Friday, May 21st, 2004 at 6:00 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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