Author: Marcela Palacio Puerta

Colombia – A Place Where You Could Be Sentenced to Two Years in Jail for Plagiarism: A Crime that Does Not Exist!

Abstract: Colombian copyright law does not expressly incorporate plagiarism as a crime. Nonetheless, Colombian courts have proclaimed plagiarism to be an act worthy of incarceration. Colombian copyright law protects moral rights of the author as human rights. In this regard, moral rights enjoy special protection that economic rights, for instance, do not have. Somewhat counter-intuitively, protecting moral rights as human rights, without set boundaries, may unbalance the copyright system and even violate other human rights, which is the case in Colombia. First, this Article describes the special protection of moral rights as a guaranteed human right under Colombian law. Second, it explains the Sentencia de Casación No. 31403 from 2010, a case law sentencing a professor to jail term for plagiarism. Finally, this Article analyses the said case law and concludes that the protection of moral rights as human rights in the terms established by the Colombian Supreme Court may unbalance the copyright system and violate other human rights.   Full text on SSRN:...

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Copyright, Technology and Education for the Twenty-First Century: the United States-Colombia Free Trade Agreement

Descripción en español Technology has become essential for education. Many countries around the world have started to incorporate technology in the educational environment, thereby changing the educational process in order to give 21st-century learners the new abilities they need. Moreover, for developing countries, the use of technology in education represents an opportunity to solve salient problems of their educational systems. Nonetheless, countries have left aside the fact that copyright law governs how that technology can be effectively used in education. Although the connection between copyright and education has been a hotly debated topic since the beginning of copyright law; the literature has not addressed the connection between the incorporation of ICTs in education and copyright law. Nor has the literature has addressed the United States-Colombia Free Trade Agreement’s copyright provisions’ consequences on education. Therefore, for the first time in the literature, this book brings together three controversial subjects in the copyright field: education, technology, and FTAs focusing in the case of the U.S.-Colombia Free Trade agreement. Thus, this book becomes an important source of information for policy makers in developing countries who are confronting the obligation to implement the U.S. FTAs’ copyright chapters but at the same time are betting on the use of the technology in education. It is also useful for educators in the field, for educational institutions, and an important addition to the existing literature on...

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Ecuador Seeks to Increase Penalties for Copyright and Trademark Infringement

The Ecuadorian Commission on Justice and Structure of the State has initiated a plan to socialize potential reforms to the criminal code. This includes changing penalties for copyright and trademark piracy. This reform is intended to bring the country into compliance with its TRIPS requirements. It seeks to punish commercial scale piracy with fines to exceed fifty thousand dollars. Nonetheless, representatives of the entertainment industry have questioned the inability of the reform to punish every type of infringer. For more information (in Spanish), see Asamblea inició socialización de reformas al Código Orgánico Integral...

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Peru’s Ministries of Health and Commerce at Odds Over TPP Data Protection Rules

In Peru, there is an internal confrontation between ministries due to the data protection provisions of the TPP. The Ministry of Health opposes to the extension on data protection due to the effects than it can have on access over medicines for Peruvians, as many international organizations such as Medicos Sin Fronteras have claimed. Nonetheless, the Ministry of Commerce, in a document published puts this statement in doubt. The document contains 105 questions about TPP. Regarding access to medicine the document raises a question: will the TPP affect public health? Then the document states that the same concern was made during the Peru-U.S. FTA negotiation, but that to the moment those concerns have not been rejected or accepted by the Ministry of Commerce. (See: http://larepublica.pe/impresa/economia/15214-ampliacion-de-patentes-de-farmacos-y-medioambiente-siguen-en-discusion-en-el-tpp ) Moreover, Minister of Commerce Magali Silva has also stated to the press that she is in favor of granting five years of protection to data protection, which opposes to the position taken by the Ministry of Health. Representatives of both Ministries have travel to Hawaii for the next TPP round. (See: http://larepublica.pe/impresa/politica/18521-mincetur-y-minsa-enfrentados-en-hawai-por-el-tpp) In Mexico some concerns have been raised about the effects that patent provisions on the TPP can have in the Mexican market of generic drugs. Few weeks ago, the Federal Commissioner for the Protection from Sanitary Risks, showed data about how, in Mexico, generic drugs have an 85% of consumption, helping...

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The Untold Story of Colombian Copyright Law as an Overprotective Law and the Problems of its Application in the Digital Environment

The current Colombian copyright law appears to be a traditional copyright framework that seeks to protect authors and provides an enforcement mechanism[1] for those rights while at the same time providing limitations and exceptions in favor of public interests according to international standards.[2] A closer view of the law, however, reveals that Colombian copyright law favors authors’ protections and undermines public interest uses, especially in the digital environment. This regulatory framework does not favor the incorporation of technology in education. Regarding substantial copyright provisions, the Colombian copyright law grants – and exceeds – all the minimum standards of protection established under Berne, TRIPs, and WCT. This strong protection is generated because copyright protection does not answer to a numerous clauses of protected economic rights but instead protects an unlimited number of uses.[3] Additionally, moral rights protection goes beyond the minimum standards of Berne by creating a perpetual and inalienable rights.[4] Moreover, other aspects of the Colombian copyright law also exceed international standards. For example, the duration of copyright protection also exceeds Berne’s minimum standards of life plus 50 years.[5] The situation of the limitations and exceptions, however, is different. Colombia has not exercised its full ability to establish the limitations and exceptions allowed by international agreements. Law 23, for example, does not establish exhaustion to the distribution right,[6] which the WCT allows.[7] Moreover, in the digital environment, Colombia has...

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Paraguay’s Copyright Reform and Data Retention Law

This month has been a busy one for Paraguay’s copyright law and Internet governance. The Paraguayan Congress decided to reject copyright legislation that sought to modify the current copyright law in articles 128,138, and 139. ( See ) The reform would have established an “arbitral commission” as part of the Intellectual Property Office (DINAPI) in charge of establishing the fee rate for using copyright. Moreover, the bill of law established that the fee should be paid in a state-dependent “one-stop” location. This Bill was really controversial. For instance, the DINAPI publically opposed the approval of the Bill stating that it will go against Paraguay’s international obligations acquired in the Berne Convention. The DINAPI also argued that copyright, as private rights, should be managed by the autonomy of the holder. (See also: Cuestionan proyecto que pretende modificar Ley de Derechos de Autor). Regarding Internet governance, since last December the Paraguayan Congress was discussing a bill over data retention. The bill was aimed to fight cybercrimes such as child pornography. Although the purpose of the law was important, its proposed methods caused huge controversy. The law sought to ask ISPs to keep data about IP addresses, date and time of disconnection, and origin and destination of the online activity. The bill of law was criticized by over 60 organizations worldwide due to its ability to create mass surveillance. The Congress rejected...

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Legislation on Limitations and Exceptions to Copyright Under Debate in Colombia

The Colombian Parliament is debating Bill 001 of 2012.[1] This Bill contains provisions regarding limitation and exceptions to Copyright Law. Last 16 of April the Bill passed the second debate in the House of Representatives. Now it is pending for debate in the Senate. This Bill contains six articles regarding limitations and exceptions. Article 1 mandates an exception for temporary copies made as part of a technological process in some specific circumstances. Article 2 mandates an exception in favor of people with sight or hearing disabilities. Article 3 mandates an exception in favor of libraries and archives allowing them to lend a work. Article 4 mandates an exception in favor of parody. Article 5 mandates an exception in favor of educational institutions allowing the public performance of a work under certain circumstances. Finally, Article 6 repeals all provisions contrary to the ones mandated by this Bill. Some positive points can be extracted from this legal initiative. First, after the petition made by Red PaTodos,[2] this Bill is being publicly debated. This is a positive point because previous copyright bills have been enacted through processes without public discussions[3]. Second, some sectors of society other than copyright scholars have engaged in the discussion, and they have manifested their concerns regarding this bill.  For instance, radio shows and news organizations that use parody as a way to inform people or make political...

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Colombian Constitutional Court Strikes Down Ley Lleras 2.0

The Colombian Constitutional Court has struck down the law 1520, generally known as “Ley Lleras 2.0”, which implemented part of the U.S FTA obligations in copyright law. This event happened last night, when the Constitutional Court was deciding about the lawsuit presented by Senator Robledo over articles 13 and 14 of such law. The Court after analyzing the law considered  that the entire law was processed in the wrong Congress commission. This decision of the Constitutional Court has the effect of striking down the law; however, the Congress may enact the bill again if it follows the adequate procedure. Regarding articles 13 and 14, the Constitutional Court considered  that these articles infringed the rights to access to knowledge and right to inform, like the plaintiff had claimed. This is a big step for Colombia It is important to point out that the official written decision is not available yet. Therefore the press media is the only source of information.   http://www.vanguardia.com/actualidad/colombia/192808-se-cayo-la-ley-de-derechos-de-autor http://www.cmi.com.co/?n=97497...

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Panamanian Copyright Bill (no. 510) Approved by Congress

Panama’s Bill no. 510, reforming the countries law on copyright and neighboring rights, was approved today by the Congress in third debate.  Under the Panamanian system, the law will now be sent back to the executive branch for final passage. The Minister of  Commerce and Industry, Ricardo Quijano, expressed that “with the implementation of this new Act , our country [Panama] is being upgraded within the international and global context.”  At the same time,  Congressman  Jose Blandon asked to make the Act public to avoid distrust within the population about this law, which gives new  faculties to the Ministry of Industry and Commerce (MICI). Is the Minister of Commerce right? Are the international standards implemented by this Act? This Act gives extraordinary power to the administrative organism in charge of the registration, storage, monitoring and inspection of copyright, allowing it to impose fines  on infringers,  violating the general principles of law as “ non bis in idem” and “presumption of innocence”. Can impartiality and justice lead a process of imposing fines, when the beneficiaries of the fines are the functionaries of the organism itself? ( see: http://infojustice.org/archives/27344) However, Congressman Jose Blandon asked to make the Act public to avoid distrust over the population. It would be nicer if the bill had been published before its implementation, in order to allow Panamanian to participate in the writing of the bill....

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Colombian Minister of Technology Defends the FTA’s Implementation Law

Diego Molano, minister of the Colombian ministry of technology of information and communication, talks about the FTA’s implementation Law. In an interview given to “ENTER.CO” ( e-newspaper about technology, internet and digital culture), the Minister states that this project has not been made in high-speed track, and it is just a technological updating of the Colombian copyright law and, it  makes the Colombian Copyright law to stand at the same level of protection than the U.S. Copyright law. The Minister defends the treatment that the draft has received and mentions that the discussion of these issues lasted years during the negotiation of the FTA, he denies that it has been a slight discussion. He also states that for Colombia is fundamental to approve this law because the FTA has to come into force. More information available in:...

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As Colombian Senate Debates FTA Implementation Bill, Anonymous Takes Down Its Website

The Colombian draft bill for the implementation of the Colombia-US Free Trade Agreement obligations is creating strong reaction from Colombian society.  Not only copyrights scholars oppose to this draft; the group Anonymous Colombia has unplugged the official website of the Senate to show its rejection to this draft. The Senate website has been unplugged since March 27. For more information, see Comunicado Anonymous Colombia Sobre (a video from Anonymous), and the news story: “La nueva Ley Lleras recarga el ciberespacio de protestas” by Perla Toro...

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