March 19, 2018
Honorable Senador Alexander López Maya
Comisión Primera del Senado
Honorable Maria Lorena Gutiérrez
Ministra de Comercio, Industria y Turismo
Honorable Guillermo Rivera Flórez
Ministro de Interior
Dear Honorable Senador Alexander López Maya, Ministra de Comercio, Industria y Turismo, Dra. Maria Lorena Gutiérrez, y Ministro de Interior, Dr. Guillermo Rivera Flórez,
We write as a group of international intellectual property academics and experts on the intellectual property provisions of US free trade agreements.
On previous occasions we have sent comments and suggestions regarding proposed copyright legislation in Colombia. See http://infojustice.org/archives/9414 . We write today to offer our views on Article 14 of the proposed Copyright reform dealing with limitations and exceptions.
Our central concern is that Colombia take advantage of the flexibility in the US-Colombia Free Trade Agreement to adopt a general public interest limitation and exception that can authorize future uses of copyright content that might not be envisioned today but that nevertheless would be fair under the standards of all international copyright laws.
International copyright law – including the US-Colombia Free Trade Agreement, permit countries to make exceptions to rights as long as the permitted use does not “does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”
To take full advantage of this authorization, Colombia should add to its current copyright exceptions a general right to make uses that the three-step test permits. Such a general right may be followed by a list of specific uses that are permitted, including to add predictability the implementation of the statute. We attach an example of a general public interest exception followed by a list of specific exceptions.
Having an open general clause has real-world impacts. The Program on Information Justice and Intellectual Property has been undertaking research on how countries fare after they adopt more open general copyright exceptions. What we find is that more openness in copyright exceptions is associated with stronger growth in technology industries and higher production of quality scholarship. See
Sean Flynn and Michael Palmedo. The User Rights Database: Measuring the Impact of Copyright Balance. PIJIP Working Paper 2017-03, available at http://infojustice.org/flexible-use
Adoption of a right similar to the “fair use” right in the United States would be one way to serve the interest we raise. We suggest another option in the enclosed proposal, which draws more heavily on civil law concepts. We specifically recommend that Article 14 contain the following general exception:
It shall not be a violation of copyright or related rights to use a work for a purpose or to serve an audience separate from that of the original work as long as the use is not in excess of that justified by the purpose and is consistent with fair practice, including consideration of the purpose of the use and any substitution effect on the primary market for the original work.
This test adheres closely to the international three-step test, but gives meaning to its terms by referring to traditional civil law criteria – “not in excess of that justified by the purpose” and “fair practice,” while making clear the ultimate protection for the primary market of the original work.
In our proposal, attached, we follow this general test with some specific examples of its application to uses the law should clearly permit, such as to improve access to people with disabilities, for education, for quotation and for other uses.
Respectfully,
Peter Jaszi
American University Washington College of Law, USA
Michael Carroll
American University Washington College of Law, USA
Sean Flynn
American University Washington College of Law, USA
