L'ambito di applicazione dell'art. 180 l.a.: profili obiettivi e subiettivi tra residui di esclusiva ed esclusione delle EGI

The Council of State with the decision published here has (rejected the appeal of
SIAE against the ruling of the Regional Administrative Court of Lazio that confirmed
the decision of the AGCM that) detected an abuse of a dominant position (pursuant
to article 102 TFEU) by SIAE: both, in the upstream market (against rights holders),and in the downstream market for collective management (against users). In this es-
say, the author focuses on a crucial aspect of the decision, relative to the field of
application of art. 180 of the law nr. 633/1941 (as amended by art. 19, paragraph 1,
lett. b), n. 1), D.L. 16 October 2017, n. 148, converted, with modifications, from L.
4 December 2017, n. 172). Other collective management organisations (CMO) can
now access the market for collective administration of copyright through this rule set
by the Italian legislator. Article 180’s wording is not clear about its actual field of
application. The essay, after examining the various theories in doctrine and jurispru-
dence, also questions the compatibility with the European Union’s law of the choice
of the Italian legislator to exempt independent management entities (IME) from the
activity of collective management of copyright.