Yesterday, the Colombian Executive introduced a draft law it says is required to implement its obligations under the Colombia-US Free Trade Agreement. The Congress has been called upon to do the necessary paperwork in three weeks to have the law in place before President Obama visits Cartagena in mid-April.
Political context
Colombian FTA was negotiated over a decade ago when most of what we understand as Internet was no even possible to imagine. Still, the Colombian government argues that there is no regulation of the Internet if they address a Copyright[i] reform in 2012),
Now the Executive wants the Congress to adopt their draft bill proposal implementing the FTA word by word. We as civil society have warned that “the devil is in the details.” Like any international treaty, the FTA can be implemented in a variety of ways – Colombia has options. Precise public policy should play an important role in its implementation.
However, the Government has chosen to avoid any public discussion that might force them to do a complete reform of the outdated Colombian copyright regime, especially regarding exceptions and limitations. Such reform ought to be openly discussed within our society, and with data on the current situation of the country. The plan to fast track FTA implementation could be meant to avoid civil mobilizations of the type that are growing into a daily occurrence around the world (for instance, opposition to SOPA, PIPA or ACTA). Therefore, they presented the bill Tuesday, presented the “ponencia” Wednesday, and had an invitation to vote on Thursday. In a country where a ordinary law will take 2 years, this project will do half the procedure in one week! The Wednesday vote in a joint session by Commission 2 in the Senate and Camera was announced for today as I write this. This shows a complete lack of respect of Colombian civil society.
Update: The votation in joint debate results: approved with 3 votes against
The short timeframe, the government’s lack of respect for civil society, and its treating of the Congress as a bureaucratic instance undermine what should be the core of the discussion – the reform.
Main issues to be considered in the draft bill:
“For profit” definition
The draft bill contains definitions, including a very broad definition of “for profit.” It is defined “as the gain or profit to be drawn from something.” This definition is not in the FTA, nor does it need to be. Moreover, when in the FTA there is a need to describe the concept of “for profit”, the definition is much concrete. When the FTA mentions the concept “for profit” it does so as “commercial advantage or private financial gain” (art. 16.7.4 (a) last part). Considering the latest developments in the discussions of copyright, and especially on new exceptions for the Internet (such as user-generated content), it is a major public policy choice to go forward with such a definition. Colombian civil society should have the option to discuss other definitions.
Term of Protection
The FTA requires establishing a term of 70 years for copyright protection. In Colombia, the term of copyright protection has been 80 years after the death of the author since the 19th century. However, when the copyright holder is for instance a legal entity (rather than a person) the term of copyright protection is 50 years. This term will be extended to 70 years because of the draft. The project specifically establishes that works in public domain will not fall into protection again. Nevertheless, there should be a discussion to establish that only new works will have this protection, which would curate at some stage the public domain.
Limitations and Exceptions for TPM
The government chose to apply the basic exceptions for Technical Protection Measures described in the FTA. However there has been no discussion of any other limitations and exceptions suggested in the Agreement’s text, let alone any other needed limitations and exceptions.
Right of Webcasting Broadcast signals Article 13 has an extremely troublesome wording which provides a webcasting right for broadcasters and cable casters. It is written in a way that could easily be interpreted that it is a right with no exceptions. There should be a deeper consideration and study on this.
Providing wider civil responsibility as requested by the FTA, without a procedure for Internet Service Providers, is not a safe road for Internet development. However, the ISP provisions were probably not included because of the failed attempt to pass a law solely on this issue during 2011, without a social discussion. (The draft law was called Ley Lleras).
TPM
The norms on Technical Protection Measures (TPM) provide an independent type of protection that applies even in situations where there is no copyright infringement. This is troublesome on its own – and it is so even in US judicial decisions nowadays. Requiring legal protection for TPMs independent of copyright violations is likely to undermine countries’ existing copyright limitations and exceptions and national competition policies. It also runs counter to the emerging consensus from international entities that have investigated the impact of TPM legal regimes, that legal protection against circumvention of TPMs should be tied to the scope of national copyright law. Is Colombia in a position to ignore this discussion?
Data Protection and other norms
National law on due process and provisions on data protection and the right to privacy can be undermined if administrative authorities are given the right to disclose protected personal information. This should be discussed further.
The draft includes a criminal reform that was approved without analysis on commercial grounds in the trade commission of the Congress, and cannot be properly studied before its integration to national law.
CONCLUSION
The proposed draft does approach our obligations under the FTA but it is not just an implementation of the Colombia-US FTA. It is a reform of the copyright regime that will continue to increase rightholders rights while ignoring necessary equilibriums, denying us the opportunity to discuss them more broadly. It goes beyond what the FTA requires. It will be a problem if it is passed without civil society, just as we speak under the argument that this is the way to comply FTA.
We are calling on the Colombian Congress to stop the fast track on this draft and facilitate the discussion, to let us know all, gather facts, compare, and listen (please sign http://redpatodos.co/blog/que-nuestro-futuro-no-se-decida-a-las-carreras/). Furthermore, last week President Obama said he was pleased to know that via a fast track Colombia will comply the FTA. The US should understand that there is no good in having the FTA as a tool for pressing small countries’ intellectual property laws without proper analysis and under social discontent – it should be really used to press for informed and equilibrated copyright laws that enhances the protection but with a social equilibrium for disable people, education, libraries or users.
[i] Colombia has the author’s right regime
