Enforcement del diritto d’autore. L’equo compenso derivante dall’utilizzo online delle pubblicazioni a carattere giornalistico

In implementation of EU Directive 2019/790, Article 43-bis of the Italian Copyright Act, introduced by Legislative Decree No. 177 of 8 November 2021, states that information society service providers must pay publishers of journalistic publications fair compensation for the online use of their publications. In this context, the sector regulator (AGCOM) is called upon to play a twofold fundamental role. First, it must define, by means of a specific regulation, the reference criteria for fair compensation, in order to offer the parties a valid range of instruments for the conduct of negotiations, guided by the principles of fairness and good faith. Second, without prejudice to the right of the parties to bring an action before the judicial authorities, AGCOM may be called upon to determine on a case-by-case basis the amount of fair compensation in the event of failure to reach an agreement between the parties. This article therefore focuses on the profile of fair compensation deriving from the online use of publications of a journalistic nature, with the purpose of better clarifying the regulatory framework in force at Italian level and of providing useful tools for the adoption of the aforementioned regulation and for keeping disputes to a minimum. In this sense, the relevant steps of the implementation process of the EU Directive 2019/790 at national level and the criteria for the determination of fair compensation identified in the Italian legislation are discussed, taking into adequate consideration market dynamics and the need to minimise litigation. In particular, the paper critically illustrates such criteria and discusses how to mitigate, balance and integrate them, in line with the objective of making them as effective as possible for the determination of fair compensation, also taking into account the peculiarities of digital information, the risks of moral hazard and opportunistic behaviour, as well as the overriding need to protect information pluralism.