Collecting societies e abuso di posizione dominante: spunti ricostruttivi sul rapporto tra disciplina della gestione collettiva e diritto antitrust, a margine del provvedimento Siae/Servizi intermediazione diritti d’autore

This paper intends to examine the issue of the relationship between two distinct disciplines: antitrust law on the one hand; and the (special) regulation of collective management on the other hand. The study starts from examining a recent decision of the Italian Antitrust Authority (Agcm), a decision for which certain conduct held by Siae in the collective management market has been considered illegal for abuse of a dominant position according to art. 102 Tfue. These behaviors held by Siae have affected: both the so-called upstream market (i.e., relations with copyright holders); both the so-called downstream market (i.e., relationships with users).With the legislative decree n. 35 of 2017 for the implementation in Italy of the EU directive n. 26 of 2014, the Italian government established the definitive end of the legal monopoly (provided for by the prior art. 180 of the law n. 633 of 1941) attributed to Siae for the management of copyright, thus opening the way to the establishment of a competitive market in that sector. The new collective management market is — albeit only partially — regulated by the particular discipline of collective management. This discipline does not appear to be perspicuous about the functions and objectives it sets itself. In this regard, two possible exegetical theses have been formed in the literature: a first thesis — shared by the decision commented here by the Agcm — is that the new regulatory framework for collective management must be rebuilt around the function of preventing possible market abuse operated by Copyright Collecting Societies; a second thesis is that the new discipline of collective management must be explained under the light of the interest in rebalancing the capitalist power to select the access of musical works to the market. In this work, the author intends to highlight that if one adheres to the first, or, on the contrary, adheres to the second exegetical approach, different practical consequences are determined about evaluating the conduct held by the former monopolist Siae.