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Italy's AGCOM Moves to Regulate YouTube, Other Video Sites

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While its concept of "channels" for certain premium content is helpful in understanding the metaphor around online video site YouTube, that concept itself may be causing the Google-owned site a major headache in Italy.

La Repubblica covered the late December move by the country's communications governing authority, AGCOM (the acronym, in Italian, roughly translates to the Italian Communications Authority) and its attempts to regulate YouTube.

"The year 2010 ends with a 'gift' for unwelcome YouTube, Dailymotion and other popular sites hosting user-generated video," wrote Alessandro Longo, in Italian, in a La Repubblica article which has now been translated into English.

AGCOM published two resolutions that now equate online video to broadcasting services, a move that brings with it the self-regulation-and potential of government intervention-that a traditional broadcaster faces within Italy.

As Longo points out, Italy is "probably the first Western country to make this leap of interpretation, leading to unprecedented requirements for websites" that operate within the user-generated content space.

The resolutions, one each covering web television and web radio, seek to require both curation and editorial self-policing of content that appear on a site, if the site offers any form of advertising.

This would cover a number of sites including Dailymotion, Vimeo, YouTube and others that offer services in Italy. It might also cover any site that has content in Italian, or of an Italian nature, although that seems less likely, at least for sites operating from a non-EU country.

"If we read the resolutions," says Italian attorney Guido Scorza, "it is clear that also relates those sites, if two conditions are true together: exploitation of the video and editorial responsibility, exercised in any way."

That editorial responsibility, according to Scorza, could be simply the aggregation of content coupled with a terms of use that allows the site to refuse to post-or to take down-offending content or copyright violations.

The latter, copyright violation, may be at the heart of AGCOM's approach; if so, the timing is suspect, as Italian Prime Minister Silvio Berlusconi's media company, Mediaset, recently lost a court case against YouTube.

In that case, the judge ruled that Mediaset could not sue YouTube directly for copyright infringement that was generated by a user uploading content. The new regulation changes the concept to be one of overarching curation and editorial policing for sites that host user-generated content, clearly targeting YouTube.

"It is clear," says Scorza, "that AGCOM recognizes editorial responsibility to sites like YouTube, even if not mentioning them directly. . . . The aim is to ensure equal legal treatment to all those who use editorial content, regardless of the means used."

What's even clearer is the move to target other companies that haven't quite grown to the magnitude of YouTube, but to exempt smaller companies, to whom the threat of a lawsuit may be enough to force removal of disliked content.

"The new resolutions deliberately exclude web TV and web radio minors by the new rules," writes Longo. "They do not apply to those who bill less than 100 000 € from audiovisual activity or have a weekly schedule of less than 24 hours of video."

Whether YouTube can use the on-demand argument to exempt itself from the ruling remains to be seen. Scorza indicates it may be difficult for YouTube to do so, given the way the regulations have been written.

"In the various lawsuits against YouTube," says Scorza, "such as the one brought by Mediaset for breach of copyright, [the regulations] will reinforce the concept that the site has an editorial responsibility. After this decision, it will be difficult for the judge to decide otherwise."

Expect to hear more about this topic in the European Commission, as the ruling could have wide-ranging impact across all European Union countries.

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