The Italian law 248/2000: a menace to software professionals
Associazione Software Libero
February 2001
This document deals with the problems arising from
an amendment to Italian copyright law (September,
2000), which in addition to going against a subsequent
European Community recommendation (February, 2001),
poses a potentially serious threat to the activities of
independent software developers and makes it difficult
to legally distribute free software in Italy.
Please send any comments to
mailto:<info@softwarelibero.it>.
The Italian Parliament recently approved an amendment
to copyright law. The new rules have been in force
since September 18, 2000 as law 248/2000. The new
mechanism is as yet unclear, but we suspect that it
might hinder or even put a stop to the work of anyone
producing software or using it in their business. The
main problem of the law lies in the requirement for a
compulsory stamp (the "bollino SIAE") on any
physical medium containing computer programs
(Art 181-bis, 1). This requirement adds to previous
rules that consider any unauthorised copying of
computer software a criminal offence (rather than
simply a civil offence). As a consequence, possession
of computer programs on non-stamped medium, either
legally or illegally, may lead to a prison sentence.
The scope of the new law is not limited to software,
and can also be damaging to other spheres of personal
freedom. We will concentrate here on the issues of
computer programs, as we consider them the most
serious. It has been observed that the law, in fact,
introduces a sort of tax on freely distributable
software. We think that these concerns are valid, but
the problem as we see it is much more serious.
Since we were not able to find any substantial
commentary on this law on the net, we made our own
research, by interviewing SIAE officers, Guardia di
Finanza1,
Postal and Telecommunications Police, magistrates and
copyright lawyers.
Our sources, while sometimes agreeing on the injustice
of the law, concur that the possession of any computer
program on medium not marked with the SIAE stamp
constitutes a crime in accordance with article 171-bis:
Whoever intends to make a profit ...for
commercial or business purposes, from the use of
...computer programs contained on a medium not
bearing the SIAE stamp, is subject to a penalty of
imprisonment from six months up to three years and to
a fine from 2500 to 15000 Euros.
According to this article, anyone using a computer
program for business reasons, and whose medium is not
marked with the SIAE stamp is committing a crime.
When importing software from abroad, in order to
promptly apply the stamp, the importer must notify the
SIAE in advance about the entrance of the goods into
state territory (Art. 181-bis, comma 6) As the
importer is identified as the buyer, the need for the
stamp applies even when an individual buys software
from abroad for business use. A SIAE officer in Rome
commented: "there’s no problem if you import a game
on CD, but if it's for use it in your business you must
have it stamped".
Since the law clearly states that the stamp is
applied for the sole purpose of protecting rights
related to intellectual works (Art 181-bis, comma 2),
one would ask: "what if you are the author of the
programs you own?". The answer, from almost all of our
sources, is that "the medium must be marked if it
is used for profit, regardless of whether the profit
comes from the future commercialisation of the
software, or for purposes otherwise related to one's
work".
The SIAE stamp must contain enough
information to identify the title of the work for which
it has been requested and the name of the author,
publisher, producer or copyright holder (Art 181-bis,
comma 5). You can apply for the stamp in the main SIAE
offices. We don't know as yet exactly which offices are
authorised to issue the stamp: when we asked a local
SIAE office, the officer stated that only Rome, Milan
and Naples are authorised, but we verified that they
can also be obtained in Florence. In any case, asking a
local office is no good (to us, the officer replied:
"it’s not our job to know, all I know is only out
of personal interest"). Nor does the web site
http://www.siae.it/ offer any help, as you
always end up at the same "work in progress" page
(hits made on January 21, 2001).
In practice, in order to obtain the stamps, you should
go to one of the authorised offices, fill out a host of
forms only available at the office premises, pay the
dues, and come back after one to three weeks in order
to get your coveted little adhesive rectangle of
legality. Naturally this procedure is required for each
and every medium owned or imported (to enable
identification of the title ...).
To identify the scope of the law, we
tried to get a fuller explanation of just how
"medium" is interpreted. A SIAE officer in Rome
affirms that "medium" is the CD or the floppy disk,
thus excluding the hard disk "for obvious practical
reasons". He explicitly admitted that a software
consultant may travel with a hard disk in his pocket,
but not a CD or a floppy disk (yet denying to sign a
declaration to that effect). As we expected, both the
magistrate and the lawyer with whom we spoke refused to
consider the hard disk as different from other mediums.
They even suggested that software consultants carrying
their own laptop for use on the client's premises
should apply a SIAE stamp on the laptop itself.
In fact, the SIAE interpretation is not unreasonable: a
hard disk contains hundreds of programs. For example,
we run GNU/Linux on our computers, and there are over
800 software packages installed on each of
them. Identification may be more straightforward for a
proprietary operating system, but no one working with a
computer has less than 10-20 programs installed on his
machine. Because of that, the identification of the
"title and author" of each and every program on a
single stamp is just not feasible; even the idea of
applying tens of hundreds of stamps on one product is
not conceivable given the highly dynamic contents of a
disk. A hard disk shares the same problem as a CD
regarding the high number of programs, and has the same
problems as a floppy with regard to dynamic contents,
so in fact the "practical reasons" invoked by the
SIAE officer should not be applied to hard disks alone.
In principle, paper medium could be affected too. When
a program is written in an interpreted language,
distribution "for profit" is possible on paper, slide
or transparency. For example, it is common practice for
a software consultant when teaching courses, to
distribute and comment on a complete source (a couple
of pages, often less) of a functioning program which is
effectively usable. Every demo program distributed on a
magazine or during a paid course (i.e. "for profit")
apparently requires the SIAE stamp, under penalty of
seizure of the unstamped material and imprisonment
(Art. 171-bis, comma 1). To date, we have not collected
legal opinions on the applicability to paper medium.
The main problem with the new law lies in the use of
the term "computer program", not defined by the law
itself nor by any other legal standard. These words
have a sound meaning when dealing with intellectual
works, because computer programs are generally
protected by copyright just like any musical or
literary work. However, the program (an abstract
entity) has to be given material dimensions to enable
the application of a stamp.
This law has obviously been written with the blinkered
attitude, where "program" means "a very expensive
CD, printed for mass market distribution and not
legally reproducible". Only this sort of reasoning
could justify the requirement for stamp application on
"all mediums", given the difficulty of obtaining
it. But freely redistributable programs do in fact
exist: for example programs written for internal use in
companies, which are repeatedly duplicated, programs
used in computer courses, or free software programs,
such as all the components of a GNU/Linux system. Also,
programs exist which are "small", much smaller than
the stamp itself. Some of the programs that we use in
our everyday work are a few kilobytes long, even few
lines of text, and many common utilities are small,
like the popular Pkzip program. There are a number of
programs that can be freely downloaded from the
Internet to a user's hard disk; but this is a crime
according to the new law.
The members of Parliament who approved the law admit
that it was born under the pressure of strong lobbying
by big software companies, intentionally ignoring --
and as a consequence making them illegal -- all
programs and mediums that are not distributed through
the usual commercial distribution channels. The
official excuse is that programmers, in order to earn
what they deserve, need to be protected from the
illegal copying of software for personal use. However,
the lobbyists that pushed the law are the very same
software companies who recently issued a TV advert,
almost disguised as public information, where the act
of copying a computer program is depicted as one of the
worst crimes out. This spot was later condemned as
misleading and its further diffusion prohibited.
Non-profit use of programs does not require
the stamp; however, several actions can be defined as
"profit-making". The SIAE officer in Florence
declares that free distribution of a demo is for
profit, and thus requires application for the
stamps. It may be conceivable that using a computer for
browsing the web can be considered for profit, since it
enables access to information useful for one's own
work. So have we reached the point where even use of a
network browser will require a stamp?
The mechanisms introduced by the new copyright law have
the potential of paralysing or criminalising any
conceivable business that uses computer
programs. Compliance with the law in this respect is
especially difficult. Law 248/2000 was intended as a
stand against software piracy, but it now risks
damaging the very authors it claims to
protect. Independent programmers will incur
unreasonable expenses and difficulties that will hinder
their freedom of expression, while established software
companies will have the chance of increasing their near
monopolistic grip on users. The police have the right
to inspect your office and seize material even if
nobody has sued you for infringement, as the order of a
judge is sufficient to take actions for this crime. It
is not unlikely that Police forces will set up a
nation-wide round-up in the future, to spread
uncertainty and force literal application of the law to
prevent further such crime.
Independent software businesses are the most damaged by
application of the new law. We claim that its
application should be suspended until its effects are
seriously studied and a new law be written. The focus
of the law should be the good of society at large,
rather than the mere income of big software companies.
Verbatim copy and distribution of this document,
in any medium, is permitted and encouraged.
|
