grant of a licence which does not take into account the actual representative nature of SIAE;
lack of information as to the managed repertoires in the SIAE licence agreements;
application of a lump sum rate based on the type of TV channel and calculated on the basis of the revenue of the broadcasters and the complete absence of any reference to the criteria indicated in Directive 2014/26/EU including the financial value of use of the rights, the duration of the musical parts and the financial value of the service provided by the collective management entity.
On 25 September 2018, the Italian Antitrust Authority (AGCM) found the Italian Society of Authors and Publishers (SIAE) guilty of abuse of a dominant position in the copyright management services market, ruling that the conduct of the Society since January 2012 had contravened Article 102 TFEU. According to the AGCM, SIAE, «by means of persistent assertion of an unlawful monopoly», compromised the right of authors to choose and prevented competitors from offering copyright management services.
The ruling was the outcome of an investigation commenced by the Authority in April 2017 as a result of the filing of complaints by two companies, Soundreef and Innovaetica. The Authority described SIAE’s conduct as «a complex strategy aimed at excluding competitors in markets relating to copyright intermediation services and plagiarism protection services, consisting of imposing constraints on the offer of other copyright management services, on the offer of copyright management services and plagiarism protection services and on the management of non-SIAE affiliated writers and publishers and of hindering competitors in the issuing of licences to TV broadcasters and the management of the repertoires of foreign copyright holders».
The conduct of SIAE was aimed at: i) excluding competitors from the market of collective management services for copyright and related rights not covered by the legal exclusive right enjoyed by SIAE under Article 180 Copyright Law until 15 October 2017, services which may be provided in competition also being included in the mandate relating to this reserve, and preventing the holder from directly exercising itsrights; ii) assuring SIAE the management of the copyright of non-SIAE affiliated rightholders, even when said rightholders have expressly stated that they do not wish to avail themselves of SIAE services; iii) preventing users - in particular national TV broadcasters and live concert organizers – from entering into licence agreements for use of the works with competitors of SIAE.
The AGCM examined various key features of relations with TV broadcasters in previous and new SIAE agreements for the licensing of its repertories including:
SIAE has 60 days within which to «immediately cease its competition distorting conduct». Within the same period it can, however, appeal the ruling before the competent administrative authority. In spite of the incisive natureof the investigation and the subsequent decision, the sanction issued by the AGCM against SIAE of one thousand Euro was “symbolic”, justified by the fact that «the unlawful conduct was carried out by SIAE in markets in close proximity to the fields covered by the reserve in force until 15 October 2017, and by the specific nature and complexity of the matter».