The Italian government was under a duty to report the standard of the SIAE mark on CDs to the European Commission. From this failure it follows that the Italian authorities cannot penalise people for failing to comply with SIAE mark on CDs.
This is the Advocate General's Opinion in Case C-20/05
Mr Schwibbert is a German citizen, legal representative of an Italian company which is the defendant in a criminal action for having commercialized in Italy a CD ROM lacking the "SIAE" mark (SIAE is the "unique" Italian agency for the protection and the management of copyrights).
In fact, the Italian law punishes those who use for a commercial purposes every CD, audio and video box, DVD, etc, containing copyright materials (software, sounds, voices or images) without a "SIAE" mark. To put the SIAE mark one must pay euro 0.0310 per unit (euro 0.0181 in some exceptional cases). Now, the Italian law requires use of the SIAE mark even on blank CDs, DVDs, etc.
During the first hearing (24 April 2007 - over which the Finnish Judge Allan Rosas presided), the attorney for the defendant (lawyer Andrea Sirotti Gaudenzi) asserted that the Italian law had introduced some “technical rules” in violation of the EU rules, i.e. without proceeding to the prior communication of its legislative proposal to the EU Commission.
The Commission has joined in the submission of lawyer Sirotti Gaudenzi.
On the opposite site, the Italian Government and the SIAE lawyers assert that the SIAE mark was a pre-existing practice in Italy and that, therefore, the new law “would have simply duplicated” the existing situation.
The Advocate General's Opinion (AG Trstenjak - 28 June 2007) is that the Italian government was under a duty to report the standard of the SIAE mark to the European Commission. From this failure it follows that the Italian authorities cannot penalise people for failing to comply with SIAE mark on CDs.
We are now waiting for the final judgment of the Court.
SIAE risks loss of the returns derived from the affixing of the "SIAE" mark!!!!
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