Web radio law does not violate copyright legislation, which transmits music by paying only partly the SIAE rights and not at all those to the phonographic consortium if the non-existence of the profit and the only insertions emerges advertising concerns non-profit organizations without giving an economic return. Also, the configurability of other criminal hypotheses should be excluded if the intentionality of the conduct is lacking.
This was clarified by the Court of Cassation , third penal section, in sentence no. 1652/2019 (hereinafter enclosed) rejecting the appeals of the civil party and the Public Prosecutor against the sentence that had acquitted the defendant, manager of a web radio, from the crime of reproduction and diffusion of works protected by copyright in the absence payment of the amount due to the SIAE and the SCF.
In particular, the referring court had found that the purpose of profit was absent in the disputed conduct , since the execution of advertising advertisements did not emerge, nor the achievement of other revenues from the activity of the web radio.
Furthermore, the defendant's good faith emerged as to the lawfulness of his conduct: before proceeding with the radio broadcasting of musical pieces, he had asked SIAE the necessary steps to proceed and had followed the instructions provided by that body, having, among other things, obtained the consent of numerous record companies (consortium members in the SCF) to the radio promotion of the pieces transmitted.
In the case in question, following the investigation carried out in the merits, it was found that the radio was made by the daughter of the accused and a group of his friends: the young people, having completed the university course in journalism, had achieved a on-line journal and, subsequently, an audio channel to spread the same news.
It was only later that music was also broadcast, for which the necessary authorizations were obtained and obtained from the SIAE the necessary authorizations, with the signing of a license that allowed the loading of the music files in the digital database of the radio.
Web radio, SIAE and SCF authorizations and absence of profit
The Supreme Court recalls the provisions of art. 171-ter of the law 22 April 1941, n. 633, on the protection of copyright and other rights related to its exercise, emphasizing that the purpose of profit is an essential feature of the criminal hypothesis referred to in the first paragraph, which therefore requires this element for its configurability.
It consists of an economically appreciable gain or a capital increase, since it is not sufficient, to consider it subsistent, any other advantage, not economically appreciable (see Cassation, No. 45567/2010).
Both the newspaper and the radio were supported by donations from a non-profit association , which, in turn, was powered almost entirely by donations from the defendant (or sometimes by some of the young people in the group). Therefore, the lack of a profit in the management of the radio by the defendant seemed obvious, that, indeed, he was the financier without drawing any profit from it .
In addition, there was no advertising link between the radio and the online newspaper: the advertisements on the web radio site concerned non-profit organizations and were not remunerated, and even the advertising banners in the newspaper, in favor of the radio, had only the purpose of f a greater diffusion of the latter in the network , so that the same had determined, in a year, revenue, not collected, for about 50 dollars (moreover in favor of the newspaper and not the radio).
Save the web radio that does not pay the rights to phonographs, but transmits non-profit
On the basis of these elements, the Court of Cassation believes that the non-existence of a profit-making role in the management of the web radio has been confirmed, since no usefulness has emerged that is likely to be appreciated as a result of the exercise, albeit stable and professional. (through the issue of the required administrative authorizations and the signing of license agreements with the SIAE), resulting from the exercise and management of this web radio by the accused
On the contrary, this management was characterized by amateur and popular aims, animated by a group of young students and, above all, not generating any economic utility that could be evaluated for the defendant, who funded the activity of the radio. The accused also had numerous interlocutions with various phonographic producers, who had given express consent to the radio promotion of the pieces.
Correctly, conclude the Ermellini, the configurability of other criminal hypotheses was also excluded , as a consequence of the diffusion of musical pieces in the absence of the payment of the due rights to the SCF, given the lack of the relative subjective element and the good faith of the defendant, who , lacking technical knowledge on the subject, before starting the dissemination of music through the radio, had asked SIAE what were the necessary requirements and had followed the instructions provided by this.
