Vincenzo Iaia
After little more than two weeks from the launch of the investigation against Meta for abuse of economic dependence towards the Italian copyright collecting society for authors and editors (“Società Italiana degli Autori e degli editori, hereinafter “SIAE”), The Italian Antitrust Antitrust and Consumers Authority (“Autorità Garante della Concorrenza e del Mercato”, hereinafter “AGCM”) issued some interim measures to resolve the deadlock between Meta and SIAE. The impasse affects the renewal of the license agreement that allows Meta and its users to exploit the Italian music repertoire on Meta’s platforms (especially Instagram and Facebook).
From the last 16th of March, Meta decided to remove from its platforms the songs under SIAE’s mandate arguing that the Italian collecting society refused a take-it-or-leave-it offer. On the other side, SIAE counterclaimed that Meta did not provide any information about the exploitation of the Italian music repertoire on its social networks’ libraries (i.e., reels, stories, and posts), as provided by Art. 19 of Directive 790/2019/EU. The result was that Meta’s users (at least in Italy) were obliged to synchronize their content with foreign songs, except for the Italian artists that moved to the UK-based company Soundreef.
On April 4th, the AGCM started a precautionary proceeding against Meta to untangle the economic and cultural problems. After 17 days, the Authority issued a preliminary injunction acknowledging the requirements for the adoption of interim measures, namely the fumus boni iuris (ground for the claim) and the periculum in mora (imminent and irreparable detriment). In particular, the AGCM inferred SIAE’s economic dependence from Meta referring to the presumption of economic dependence specifically operating for digital platforms, as established by Art. 9 of Law no. 192/1997, considering that Meta failed to provide sufficient evidence to the contrary. Then, Meta’s conduct seems to be abusive and likely to cause serious and irreparable damage to the competitive dynamics in the music market because it did not only affect the copyright holders but also the holders of related rights since their songs could no longer be reproduced.
Based on these premises, the Authority ordered Meta to immediately resume negotiations in good faith. This means that the tech giant must provide SIAE with all the necessary information regarding the exploitation of the Italian music repertoire. In the event of disagreement concerning the quantity and quality of information to be provided by Meta, the Authority will appoint an independent trustee to address the current information asymmetries. In addition, the AGCM ordered Meta to restore the availability of music content on Facebook and Instagram with SIAE’s consent.
Although Meta’s libraries had not been updated until now, the provisional order gives hope to Italian music creators that their content will soon be restored on some of the most popular platforms in Italy. Finally, it is likely that the tug-of-war between SIAE and Meta will have a vast European resonance considering that other collecting societies will have to deal with the renewal of the license agreements for the exploitation of the songs under their mandates. Their bargaining power should be strengthened after the entry into force of the Digital Copyright Directive. If not enough, antitrust rules will come to the aid as a result of a new trend showing competition law and intellectual property law going hand-in-hand to encourage creativity and innovation.
