Direttiva sul diritto di autore e clausole generali. A proposito della condivisione non autorizzata di contenuti.

The essay analyzes the formula “best efforts” (“massimi sforzi”) contained in art. 17, paragraph 4, of Directive 2019/790, regarding the unauthorized sharing of content. It is a general clause, unhappily formulated in the Italian language, which must work in the light of the principle of proportionality and, for this reason, represents an excellent example of how general clauses operate today. Higher-order principles overlook general clauses and determine their meaning in an increasingly pervasive and absorbing way. Consequently, in the case of art. 17, paragraph 4, the mere reference to the principle of proportionality would probably have been sufficient. From this point of view, the debate on general clauses has been reduced compared to a few decades ago. In recent decades, due to a series of compelling statements of the Constitutional Court, general principles have been acquiring absolute priority. However, the formula of "best efforts" is also engaging because of its close link to a purely economic factor: the consideration offered to the content owner. Moreover, under this profile, the system evolves quickly and reaches areas hitherto purview of negotiation autonomy and considered intangible by the judge. Nowadays, the judge pronounces the adequacy of the offer received by the content owner through recourse to the general clause. On the other hand, at least in Italy, the trend is toward an apparatus of rules and responsibilities (reserved for AGCOM) which - at least in some sectors (journalistic works, vod) - excludes even the possibility of a refusal by the rights holder. Thus, the role of AGCOM deprives the autonomy concerning the granting of authorization and the economic consideration for it.