AGCM

On 22 March 2017 the Italian Competition Authority resolved the closure of the investigation into NUOVOIMAIE for alleged abuse of dominance by accepting and making NUOVOIMAIE’s commitments compulsory.

The investigation was started on 13 April 2016 in response to complaints from new entrants into the copyright law related rights management and intermediation market. They complained about persistent operating difficulties and in particular, that since the liberalisation of the sector in 2012, NUOVOIMAIE had allegedly conducted a complex strategy to exclude new entrants by: (i) discrimination against non-members of NUOVOIMAIE; (ii) denial of access to the general archive of works and artists; (iii) exclusionary conducts in the conclusion and implementation of agreements with foreign collecting companies, as well as (iv) exclusionary conducts in the conclusion and implementation of agreements with major national users.

In the course of the investigation, NUOVOIMAIE submitted a set of 12 remedies pursuant to Article 14-ter, paragraph 1, of Law no. 287/1990, which were subjected to market test and then definitively submitted with minor changes on 23 December 2016.
In summary, the first three commitments are aimed at resolving the issues raised by competitors in relation to discrimination and consist, inter alia, of terminating the contract signed with IMAIE in liquidation on 3 June 2014 and clarifying to the members the commission to be paid to NUOVOIMAIE on the amounts collected for the artist.

Two other commitments remedy the denial of access to the archives of works and artists, in particular by licencing access to the database created by NUOVOIMAIE, in two different ways: free access to the database updated as of mid-March 2014, or access to the full database against an annual license fee of 4.5% of the total royalties managed.
A further set of three commitments addresses the issues of bilateral agreements with NUOVOIMAIE with foreign collecting companies, in particular, recognising the right of foreign counterparties to withdraw with 30 days' notice and pro futuro only providing for contracts of annual duration requiring express renewal.

Finally, the last group of commitments is aimed at overcoming the stall in negotiations with users (in particular, television broadcasters): NUOVOIMAIE proposes arbitration for the amounts collected from Sky and Fox in favour of all artists, interpreters and performers; it will terminate the contract with AICA – Associazione Italiana Confindustria Alberghi and Federalberghi on the earliest date possible; it undertakes to organise a technical table open to all parties concerned for seeking solutions to issues relating, inter alia, to the transparency of mandates and the definition of common standards for reporting; it offers RAI S.p.A. a license agreement to access its database under fair, reasonable and non-discriminatory terms.
In the light of the changes introduced following the market test, the ICA deems the proposal for commitments adequate to restore the existing competitive dynamics in the markets concerned, encouraging comparisons between companies for the purpose of performing the full spectrum of services required to compete - including in collecting fees on behalf of foreign collecting companies – and, at the same time, relaunch negotiations with users of works to the benefit of the artists.

Rome, 5 April 2017