Fair remuneration for online publishing: all the latest updates from the AGCOM Regulation

Find out how the fair remuneration framework works in Italy

The Italian Communications Authority (AGCOM) has recently provided a detailed overview of the implementation of its regulation arising from the transposition of the EU Copyright Directive.
The meeting — a Community Talk organised by the Digital Content Observatory of the Politecnico di Milano, of which GMDE is a research partner and a specialised solution provider for the publishing industry — highlighted current dynamics and future perspectives.
Here are the key updates and main takeaways for publishers shared during the event.
 

The regulatory framework and the role of AGCOM

Equo compenso (fair remuneration) refers to the financial recognition required from online service intermediaries (such as digital platforms and aggregators) for their use of publishers’ journalistic content.
The objective is to support journalism, media pluralism, and freedom of information.-

Italian legislation, through the introduction of Article 43-bis of the Copyright Law, entrusted AGCOM with the task of defining the criteria for determining such remuneration.
 

AGCOM Regulation: main updates

The Regulation was approved by AGCOM on 19 January 2023 and came into force on 24 February 2023.

• Scope of application: it applies to the online use of journalistic publications intended for the Italian public. Rights remain valid for two years after publication.
• Exclusions: the regulation does not apply to private/non-commercial use, hyperlinks, single words, or very short extracts.
  AGCOM interprets a very short extract as a portion that does not exempt the reader from consulting the full article — meaning that most snippets displayed on search engines fall outside this definition.
• Flexibility and freedom of negotiation: parties retain full contractual freedom. AGCOM’s intervention is non-binding and occurs only upon request, after the failure of direct negotiations.
• Transparency obligations: service providers must share the necessary data and information for determining the fair remuneration. Failure to comply may result in a fine of up to 1% of annual turnover.
   

The AGCOM procedure: key points

If no agreement on remuneration is reached within 30 days from the start of negotiations, either party may refer the matter to AGCOM.

• Timing: Within 5 days of receiving the request, AGCOM’s Directorate must confirm the initiation of the procedure. The Authority must then determine the remuneration within 60 days of receiving the request.
  These short deadlines have been identified as a critical point, given the complexity of the negotiations.
• Determination of remuneration: If neither economic proposal complies with the criteria established by the regulation, AGCOM’s Office will determine the amount directly.

Calculation Criteria (Articles 4 and 6)

The Regulation distinguishes two main categories of entities subject to payment, each with different calculation criteria:

- Based on a revenue-sharing mechanism, considering the mutual benefits for publishers and service providers.

- Calculation base: the revenues of both parties, particularly advertising revenues for platforms and traffic revenues for publishers.

-  Weighting: a rate of up to 70% may be applied.

-  Priority criteria: primarily, the distribution of the publisher’s content on the platform and the publisher’s overall relevance in the online market.
 

- Calculation base: the relevant turnover of the media monitoring or press review company, derived from activities related to its core business.

- Rates: the rate cannot be lower than what is already established by market practice, referring to the Promopress system, which applied a rate of around 8%.

Future Developments

Since the Regulation entered into force, AGCOM has received just over 20 applications, most of which have already resulted in a remuneration decision.

• Growth in collective applications:
  There is a positive trend of joint applications submitted by groups of publishers (collective contracts). This approach simplifies relationships and allows smaller publishers to access the procedure more easily.
• Notable decisions:
  AGCOM has already determined fair remuneration in four cases — involving two media monitoring/press review companies and two online platforms (Microsoft Bing and Meta Facebook).
  The former were appealed by publishers, while the latter were challenged by the platforms.
• Future and Artificial Intelligence (AI):
  Although no specific cases have yet addressed AI in relation to fair remuneration, AGCOM is considering how AI systems (such as ChatGPT) could affect the use of journalistic content, emphasising the need for case-by-case evaluation of potential unauthorised use or reuse.
  A related case is already pending before the Court of Justice of the European Union.

AGCOM’s Support for Publishers

AGCOM officials have made themselves available to clarify doubts about the regulation and to assist publishers wishing to submit a request for fair remuneration following unsuccessful negotiations.
 

Contact us to receive the presentation of AGCOM.

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