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 not exercised the ability to create new limitations and exceptions also allowed by the WCT,[8] nor did it exercise some abilities to limit the scope of protection of copyright law. For example, Colombia did not exercise the ability to protect only fixed works, as Berne allowed.[9] Colombia also did not exercise benefits for developing countries that the main copyright treaty granted.[10] Colombia started the procedure required to benefit from the system of compulsory licenses for translation and reproduction under article V of the UCC but failed to fulfill the prerequisites.[11]
Despite the fact that the WCT allows the extension of existing limitations and exceptions to the digital environment, it is not clear that the current list of exceptions and limitations can apply in the digital environment under Colombian law.[12] First, there are concerns about the non-compliance with the three-step test if the limitations and exceptions are applied to the digital world. Decision 351 in art. 21 mandates compliance with the three-step test in every limitation established under national law. [13] In this way, the three-step test became a domestic tool to limit the application of domestic exceptions and limitations.[14] Second, some limitations may not be applicable to the digital world because their requirements are relevant only to analog technologies.[15] Third, some limitations and exceptions do not cover all the rights that are involved in making a digital transmission.[16] Finally, the courts have not interpreted these limitations and exceptions or their application to the digital environment.
Cases regarding the application of copyright law in the digital environment are just beginning to arrive to courts. One of the first cases to arrive to courts has generated several concerns. A master’s student shared online an academic paper written by researchers of the National University of Colombia without the copyright holder’s authorization. His purpose in sharing the article was to share the knowledge with the academic community, and he principally motivated by the fact that, in Colombia, educational materials are scarce.[17] The student published the article in a website named Scribd that, at the time he published the piece, was a free learning community.[18] Today he is accused of violating the economic rights of the author and faces four to eight years of jail.[19]
This situation illustrates another problematic aspect of Colombian copyright law: the criminal sanctions for copyright infringement are high. Colombian criminal law punishes copyright infringement much more strongly than does the United States. In the United States, the criminal law punishes willful copyright infringement for the purposes of either commercial advantage or private financial gain when the infringement involved at least of 10 copies during any 180-day period where the total retail value was more than $2500. In such cases, the maximum imprisonment term is five years for a first-time offender[20] and 10 years for repeat infringers.[21]
In Colombia, the law punishes both the infringement of moral right with 32 to 90 months imprisonment for first-time offenders,[22] and 4 to 8 years for infringement of economic rights.[23] In both cases, the punishment includes a fine and does not require the intent to profit[24] or a commercial scale. Therefore, under the Colombian criminal law there are several prohibited activities that are not prohibited under the U.S. law. Colombia’s criminal sanctions for copyright are also disproportionately strong compared to other Colombian crimes. For example, Colombia punishes manslaughter with imprisonment from 2.6 to 9 years.[25] Colombian content industries, like content industries in other developing countries, seem to prefer going to the criminal jurisdiction rather than the civil. [26] Therefore, this situation also disfavors educational uses of copyrighted materials by teachers, students, and researcher in the digital environment because of the uncertainty over the legality of the uses[27] and the heavy punishment for infringement.
Finally, Internet use of copyrighted works becomes even more complicated because Colombia lacks a collective management organization to grant licenses for digitalization and digital transmission of copyrighted works.[28] Therefore, any attempted use of a copyrighted work on the Internet may require an interested user to spend a significant amount of time and money dealing with attempted licensing.
Thus Colombian copyright law is on debt to be re-balanced to take advantages that new technologies can bring to Colombians regarding access to information, and the promotion of creativity.
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NOTES
[1] See for civil enforcement L. 23 de 1982 art 244, 245; For criminal enforcement C Pen. arts 270, 271
[2] See limitations and exception Decision 351, art. 22; L. 23 de 1982 art. 31ss
[3] See Tribunal de Justicia de la Comunidad Andina [T.J.C.A] [Andean Justice Court], septiembre 25, 1998, Interpretacion Prejudicial 24-IP-98 at 9 (explaining the characteristic of economic rights as unlimited)
[4] L. 23 de 1982, art. 30; Decision 351, art. 11 (establishing that moral rights are inalienable and implescriptible)
[5] See Berne Convention 1971, at art. 7
[6] Neither art. 22 of Decision 351 or Chapter III of law 23 1982 which establish exceptions and limitations established and exhaustion right to the distribution right. See also Dirección Nacional de Derechos de Aurtor, Concepto: Generalidades del Derecho de Autor. El Derecho de Distribución y el Agotamiento del Derecho. El Préstamo Como Especie del Derecho de Distribución.(n.d) Radicación No: 1-2014-18804, at 3 available at http://186.154.203.242/CONCEPTOSWEB/arch_conceptos/1-2014-18804.pdf
[7] See The WCT, art. 6(2)
[8] See Id. at agreed statement concerning article 10
[9] See Berne Convention 1971, at art. 2(2)
[10] See Chapter 2 about the benefits for developing countries
[11] See Dirección Nacional de Derechos de Autor, Limitaciones y Excepciones en la Legislación Colombiana, (n.d) 2010, Radicacion No: 1-2010-7340 p. 6 available at http://201.234.79.35/CONCEPTOSWEB/arch_conceptos/1-2010-7340.pdf ( stating that Colombia failed to comply with the procedure of notification)
[12] See Ernesto Rengifo Garcia, Un Nuevo Reto del Derecho en la Edad de la Información, 12 Propiedad Inmaterial 105, 109,114 (2008) (stating that limitations and exceptions have not been applied to the digital world. However, it is clear that the reproduction right does apply); see also Juan Carlos Monroy Rodriguez, Necesidad de Nuevas Limitaciones o Excepciones para Facilitar la Digitalización y Puesta a Disposición de las Obras Protegidas en el Marco de la Educación virtual, 14 Propiedad Inmaterial, 195, 203 (2010) (stating that there is a lack of clear norms about permissible uses in the digital world)
[13] See Dirección Nacional de Derechos de Autor, Concepto: Limitaciones y Excepciones en la Legislación. Biliotecas Públicas, Radicación No: 1-2010-7484, at 2 available at http://186.154.203.242/CONCEPTOSWEB/arch_conceptos/2-2010-7484.pdf (stating that limitations and exceptions in Colombia need to comply with the three step test); see also Monroy Rodriguez, supra note 12, at 203 (stating that one of the problems of applying in the digital environment limitations and exceptions that were developed for the analogous world is that they may be contrary to the three- step test)
[14] See Piedad Lucía Barrero, Derecho de Autor en Ambientes Virtuales, 66 (Universidad Cooperativa de Colombia, 2012) (stating that the Three-step test provides guidance for people and judges to interpret whether an act falls within the scope of an exception and limitation)
[15] See Juan Carlos Monroy, OMPI, Estudio Sobre las Limitaciones o Excepciones al Derecho de Autor y los Derechos Conexos en Beneficio de las Actividades Educativas y de Investigacion en América Latina y el Caribe, 143 (2009) available at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=130303; (stating the case of the limitation in favor of the reproduction with reprographic means which is not applicable in the digital world)
[16] See Id. at 146 (stating that most limitations and exceptions in Latin America do not refer to both the right of reproduction and public communication that are the rights involved in a digital transmission)
[17] See the case of Diego Gomez in Maira Sutton, Colombian Student Faces Prison Charges for Sharing an Academic Article Online, Electronic Frontier Foundation (July 23, 2014) https://www.eff.org/deeplinks/2014/07/colombian-student-faces-prison-charges-sharing-academic-article-online (last visited Oct. 23, 2014 2:13 PM)
[18] Currently the website Scribd works as a paid digital library. See Scribd, http://www.scribd.com/about (last visited Oct. 23, 2014 2:15 PM)
[19] See C Pen. Art. 271 amended by L. 1036 de 2006, julio 25, 2006, Diario Oficial [D.O] (Colom.).
[20] See 18 U.S.C § 2319 (b)(1)
[21] See 18 U.S.C § 2319 (b)(2)
[22] See C Pen. Art. 270 amended by L. 1036 de 2006, julio 25, 2006, Diario Oficial [D.O] (Colom.).
[23] See Id. at
[24] For more information about criminal protection to copyright See: Piedad Lucía Barrero, Aspectos Penales del Derecho de Autor en Colombia, 82 (Universidad Cooperativa de Colombia, 2012) (stating that criminal sanctions to copyright do not require profit intent)
[25] See C Pen. Art. 109 amended by L. 890 de 2004
[26] Copyright industries in Latin American region have prefered to endure criminal protection to copyright than civil law protection. See Alvaro Diaz, TLC y Propiedad Intelectual: Desafios de Politica Publica-en 9 Paises de America Latina y El Caribe, 35 (CEPAL Comision Economica Para America Latina y el Caribe, 2006) http://www.cepal.org/publicaciones/xml/4/26974/lcbrsr163alvarodiaz.pdf; see also Rengifo García, supra note 12, at 116
[27] See Barrero, supra note 14, at 80-81 (stating that it is important to determine whether a use fall within an exception or limitation in order to establish whether there is criminal liability
[28] See Monroy Rodriguez, supra note 12, at 196
