(with research by Marcela Palacio Puerta)

The latest example of a rushed copyright reform process to implement an unbalanced law while stifling public debate occurred in Colombia last week. Over a scant 18 days (including a break for holy week) – the shortest time ever for a piece of legislation in the country – Columbia’s Congress passed and the president signed a major copyright overhaul bill. The bill implements many of the country’s free trade agreement (FTA) commitments with the U.S. But in the process, experts and advocates have criticized the country for having “lost the opportunity to balance the legislation” with correlative expansions in limitations and exceptions — making the country the latest victim of the international trend in intellectual property maximalism.

The process started two weeks ago when a congressional committee in Colombia introduced, and the next day passed without modification, a bill that nearly word for word implemented the IP chapter from the US-Columbia FTA into local law. The basic problem with the bill stems from the nature of US FTA IP chapters themselves. As I described in a post last week:

“U.S. trade policy on intellectual property is notoriously unbalanced. . . U.S. trade agreements seek to export a set of strong U.S.-style proprietor rights and enforcement procedures. But the agreements do nothing to export U.S.-style limitations and flexibilities in intellectual property laws that benefit other interests in our own country – interests that include free expression, access to educational materials, high technology innovation or completion from generic drug manufacturers. While the trade agreements do not ban flexibilities in intellectual property laws, nor do they promote it. As a result, if countries signing free trade agreements with the U.S. do nothing to update their IP laws except pass the FTA requirements into their local legislation, they will put in place highly unbalanced systems that will hamper their own economic growth and social welfare as well as the market opportunities for U.S. companies – like generic drug makers and internet service providers – whose business models rely on flexible intellectual property systems.”

The new law in Colombia contains many substantial increases in copyright protections for proprietors required by the FTA. It increases copyright terms from 50 to 70 years, punishes those who circumvent technological protection measures, regardless of copyright infringement, and increases civil and criminal penalties and enforcement procedures. But as recounted in a letter signed by nearly 70 IP experts sent to the Colombian Congress and covered in the local press last week, law made these changes without implementing important flexibilities that are allowed in the FTA and are often reflected in existing U.S. law. That letter explained:

In defining the author’s exclusive rights, the Bill repeats the language of the FTA extending copyright to “[a]ny form of reproduction of the work, permanent or temporary, by any means of procedure including temporary electronic storage[,]” [but] fails to reflect an important principle developed in U.S. court decisions limiting the right to situations in which “[the copy] is sufficiently permanent or … stable to permit it to be . . . reproduced . . . for a period of more than transitory duration.” In other words, Colombia might subject to the control of copyright owners a variety of technologically-driven forms of transitory reproduction, such as buffering, that U.S. law authorizes.

Article 13 of the Colombia Bill prevents the “broadcasting through the Internet by land, cable or satellite of television signals” without permission from the owner of the copyright for the signal or its contents “regardless of” any limitations and exceptions to the exclusive rights in Colombia’s legislation. In U.S. law, by contrast, no exclusive right is categorically immune from the general limitations and exceptions, including “fair use,” which the law provides. . . .

Article 14 extends proprietors’ rights beyond what is required in the FTA, and significantly beyond existing U.S. law. It imposes liability for circumventing technologically effective measures imposed to control “access and unauthorized uses of works.” U.S. law and the FTA apply sanctions for circumvention only on those who hack “access” restrictions.[5] In the U.S., for example, consumers who purchased e-books with safeguards to prevent downloading (a use of a work rather than access to it) would be free to avoid this technological “lock” if they had lawful access to the work.

Article 15(g) also goes significantly beyond the FTA and U.S law in its approach to the process by which new exceptions to the anti-circumvention provisions, designed to preserve the legitimate rights and interests of creators and innovators, will be identified. . . .

The Bill’s provisions for criminal penalties, in Article 16, are perhaps the most dramatic example of how this legislation exceeds international and U.S. norms, to the detriment of Colombian citizens. The FTA requires only that “willful” criminal infringers be punished in a fashion that will generate a deterrent effect. The Bill, by contrast, would impose criminal sanctions on a wider range of infringers, including those who were unaware that they were breaking the law. . . .

The Bill appears to apply criminal penalties to any copying of a product for the purpose of “distributing it.” Even an individual duplicating a CD for a friend could be swept into the net of this Draconian criminal law. . . .

Similarly, Article 17’s assignment of the most severe criminal penalties for unauthorized circumvention to those acts done for “private financial profit” should be less than reassuring to Colombian citizens and consumers, since the Bill’s own definition of profit is essentially open-ended.

[Finally, the bill misses the opportunity] of emulating one aspect of the U.S. law: the flexibility embodied in the doctrine of “fair use.” In the context of unprecedented shifts in the nature of communication and growth in information technologies, a key issue for any copyright reform is how best to implement the flexibility in limitations and exceptions that is needed to respond to change. . . . We note that as part of its implementation of the Korea-U.S. FTA, the Republic of Korea recently adopted a fair use-based, open-ended standard for limitations and exceptions in Article 35-3 of its copyright law.

Many of these concerns were raised repeatedely during the expedited Congressional debate on the bill. According to Colombian expert and advocate Carolina Botero, the advocacy had the primary effect of complicating and lengthening what was supposed to be a quick and formal passage of the bill that was rushed through committee the week before.

As a result of the advocacy, Botero explained, “the time to vote was longer than expected, lasting “many hours,” until almost midnight on April 9, “instead of a few minutes” as most in the government planned for. This is “because we managed to raise concerns that provoked discussion and the opposition presented suggestions of amendments based on comments [by experts and academics].”

Outside Congress, internet activists were mobilizing against the bil and its sponsorsl. The web activist group “Anonymous” reportedly attacked the websites of several congressmen and government offices; other hackers altered the biography of Interior Minister Vargas Lleras on Wikipedia; and social networks filled with slogans against the initiative, dubbed “Lleras Law 2.0” in reference to an earlier failed proposal Interior Minister Lleras.

Rumors are that officials in the Executive became divided, and it is possible that the bill could have been stalled to allow time for amendments that would have increased limitations and exceptions in the bill. At one point during the congressional debate, the Congress halted consideration on the bill until the executive responded to the arguments for increased limitations and exceptions made in the expert letter.

In the end, the overwhelming forces were primarily concerned with getting FTA implementation legislation in place before the visit from President Obama to the country later that week. That objective overwhelmed the process, and the bill was passed with no major substantive changes. This prompted some in Congress to criticize the law as “a disgrace” and “shameful.”

Local activists and experts are now plotting the next steps. There are rumors in some quarters that the Colombian copyright law might be opened again for amendment in the future, to consider the implementation of needed limitations and exceptions. Some are discussing an effort to raise concerns about the bill further among Colombian academics and national figures to join in a campaign for an amendment to the bill. Advocates are also planning a Constitutional Court to challenge the law — arguing, among others, that the current form of the bill will compromise rights to freedom of expression on the internet. A civil society statement recounts:

“With the approval of the bill and its likely presidential approval, RedPaTodos announces that [it will challenge the law] before the Constitutional Court. In this new stage, we call on citizens to build a strong case and carry out intensive citizen engagement. We need support from lawyers, creative artists, communicators, leaders, activists and citizens to join voices and art into the initiative.”

English version of Colombian bill and links to background documents and US-Columbia FTA: http://tinyurl.com/columcopyrightbill

Columbian News Articles (Spanish):

http://www.enter.co/otros/presidente-juan-manuel-santos-firmo-la-ley-del-tlc/

http://www.eltiempo.com/opinion/columnistas/guillermosantoscalderon/ARTICULO-WEB-NEW_NOTA_INTERIOR-11576827.html

http://www.semana.com/nacion/estados-unidos-no-deberia-legislatura-del-mundo/175486-3.aspx

http://www.enter.co/otros/ley-del-tlc-reacciones-desde-el-senado-el-gobierno-y-los-activistas/

http://www.enter.co/vida-digital/ley-del-tlc-si-es-mas-agresiva-que-legislacion-estadounidense-academicos/

http://www.rcnradio.com/noticias/editor/fue-sancionada-la-ley-de-implementacion-del-148811

http://www.rcnradio.com/noticias/editor/lista-reglamentacion-del-tlc-con-estados-148137

http://www.enter.co/vida-digital/ley-del-tlc-mal-redactada-y-muy-agresiva/

http://www.elcolombiano.com/BancoConocimiento/U/una_ley_desperto_la_indignacion_de_los_cibernautas/una_ley_desperto_la_indignacion_de_los_cibernautas.asp?CodSeccion=399

http://www.vanguardia.com/actualidad/colombia/151975-polemica-por-aprobacion-de-ley-para-implementar-tlc-con-eeuu

http://www.vanguardia.com/actualidad/tecnologia/152420-que-hacer-con-la-ley-lleras-recargada