L'enforcement del diritto d'autore e la tutela dei dati personali: il nuovo art. 17 dir. 2019/790

This paper aims to proceed with a careful analysis of the delicate balance between rights in the field of copyright enforcement. The following considerations are justified by a strong interest in current events, namely the transposition of the new European legislation that involves copyright: Directive (EU) 2019/790 of 17 April 2019 "on copyright and related rights in the digital single market". The European regulatory framework has been nationally transposed with Legislative Decree 8 November 2021, n. 177, effective from 12 December 2021.

Considering, with an initial analysis, the provisions of a specific article of the aforementioned Directive, the seventeenth, it immediately emerged that it poses specific doubts of legitimacy in light of fundamental rights, as protected by the Charter of Fundamental Rights of The European Union. Particularly, it seems to clash with the right of respect for private and family life, with the protection of personal data and, in a word, with the right to "privacy". A peculiar conflict has therefore been selected, a source of friction between the interests underlying copyright enforcement and those of users' privacy.

Although a "right to privacy" is a recent introduction, or conquest, of contemporary legal society, since an origin of the same cannot be found before the end of the nineteenth century, this paper will try, in its first section, to identify, with an anecdotal approach, some curious historical events demonstrating how, in reality, the copyright enforcement has, since its origins, shown an aptitude to enter into conflict with other instances, which we would now include into the “right to privacy”. History can provide a solid basis for understanding modern dynamics, of instances that, from the Stationers of the sixteenth-century London, are proposed, in a digital key, in the lobbying activities that led to the approval of the new Directive 2019/790. These protection strategies, evolved with the change of technology, maintained a deep connection with their historical roots of emergence. Therefore, this paper will report stories of "pirates", of business and commerce, of self-defense and of private police bodies that will be transformed from physical into bits.

From the analogical world outlined in the first chapter, this paper will proceed to the digital one represented by the "file-sharing" on "peer-to-peer" networks. Taking up the historical trends, this paper will highlight the strategies that emerge in the digital world so that copyright holders can assert their needs in the dynamics of the Web, defining all the instances in which the copyright enforcement clashes with the importance of privacy protection. In this, the comparative analysis of both US and Euro-Italian regulations and court rulings will be particularly useful.

Among the strategies implemented by copyright holders for the enforcement of their rights, one is worthy of independent discussion, namely the use of Digital Rights Management systems. The third chapter will therefore be focused on them and on their relations with the protection of personal data, recalling technologies such as hashing, watermarking or fingerprinting, anticipating considerations on that particular form of enforcement through electronic systems represented by the Automatic Content Recognition, connecting to the fourth chapter.

Ultimately, this paper will focus on the analysis of Directive 2019/790, and particularly on its article 17, believing that all the considerations in terms of balancing rights carried out for the entire extension of this paper will merge into this provision. An attempt will then be made to provide interpretative suggestions of the new legislation, in order to highlight the shadows and criticalities in relation to the compatibility with the fundamental rights of the European Charter.

This paper will therefore try to highlight at least the complexities that legal practitioners and citizens of the world are called to face when they approach the dynamics of the digital world, without claiming to be able to trace any magical criterion that solves the complexity of reality or an effective algorithm that reduces legal thought to a sum of numbers. At most, this paper will try to emphasize the most problematic characteristics that can be found in the clash between the copyright enforcement and the protection of users' privacy, hoping to provide useful considerations to those who rule the world, legislators, courts, and economic operators, aimed at suggesting that solutions to these problems cannot be found by forgetting the achievements of modern civilization in the field of fundamental rights. The truth, according to Ann Cavoukian(1), is that privacy is the foundation of our freedom: if we value freedom, we value privacy.

(1) Ann Cavoukian, interviewed by Forbes, in H. Jones, Will Privacy First Be The New Normal? An Interview With Privacy Guru, Dr. Ann Cavoukian, in Forbes.com, 13 august 2018, accessible at: «https://www.forbes.com/sites/cognitiveworld/2018/08/13/will-privacy-first-be-the-new-normal-an-interview-with-privacy-guru-ann-cavoukian/?sh=132b577925dc» (Last access: 10 may 2022).