Co-authored with Carolina Botero

After years of being one of the most progressive regions in the world in terms of balanced copyright policy, Latin America is unfortunately sliding into copyright maximalism, enacting increasingly restrictive copyright enforcement measures into their federal laws.

While Chile spent years drafting their broad reform to the copyright system along with civil society groups, and Brazil excitedly discussed the reform of copyright law with unprecedented civil society participation to draft a balanced bill, Colombia and Panama have rushed to write and approve new copyright frameworks with drastic consequences for the digital generation. Why is this occurring? It is the result of top-down, harsh implementation of bilateral free trade agreements (FTAs) with the US, that require nations to enact far more restrictive language than what is found in the US itself.

This is precisely the kind of forum shifting and policy laundering we often blame on the US. But in these cases, Latin American governments should also be held accountable for their own choices.

Panama

Panama, which has had a long history of being susceptible to US political pressure, recently introduced a new copyright bill in order to fulfill the requirements of its FTA with the US. And they did so with no civil society consultation [PDF- Spanish]. Andres Guadamuz from Technollama called the bill, Bill 510, the “worst copyright law in history.” The Bill has been approved by the Panamanian Congress last Wednesday (September 26th), and is now awaiting the President’s signature which realistically could occur at any moment.

One of the major concerns with Bill 510 is that it completely abolishes due process from the proceedings of infringement claims. The law would create an administrative branch called the General Copyright Directorate (DGDA). The DGDA can slap users with an infringement charge and will only allow users 15 days to prove their innocence. Once arrested, they can be fined up to approximately $100k USD for the first offense, and $200k for the second .





Images protesting the new Panamanian copyright law

The monetary fines from users would not revert to cultural funds or to the copyright holders, but would go into the pockets of the government through the DGDA. Moreover, the public servant that imposes the fine wins a “bonus” of up to 50% of their salary. The absurdity of the law is that the enforcement agency will have the authority to investigate, accuse, assign the penalties, and get the final “revenues” of their work.

This is not only a clear violation of due process, but a system creating a direct incentive for the DGDA to immediately monitor all torrent use in Panama, and identify all people associated with IP addresses to be summoned and fined, regardless of legitimate infringement. Consequently, this law would pose undeniable threats to free speech, by striking fear into all users who share content, while also violating their privacy by enabling a system that allows a government agency to monitor all of their online communications. Nothing about this law is meant to promote new innovation or creative works. It will only produce new bureaucrats who have the authority to criminalize and intimidate Internet users. No other country has given the copyright office this sort of unchecked power before.

The cherry on the cake is that the law extends copyright protection to temporary electronic copies without establishing the necessary exception for the transient copies needed for the Internet to function. The Ministry announces that this law brings Panama to the new digital era, but what this provision could do is hold anyone in Panama liable for simply using the Internet, and even hold ISPs responsible for “cache” files of content that is copyrighted. Such rules are anything but technologically progressive.

While users and digital rights organizations are noting its absurdities, governments and content industry associations commemorate the law. The Minister of Commerce and Industry of Panama, Ricardo Quijano, seemed pleased with Bill 510’s passage through Congress: “[Wi]th the implementation of this new Act, our country [Panama] is being upgraded within the international and global context.”

Referring to Panama’s 1994 copyright law, the US government affirmed that Panama had “an adequate and effective domestic legal framework to protect and enforce intellectual property.” However, they also stated that more could be done to address their concerns over IP infringement, so the US government must now surely be pleased that the Panamanian government plans to commit such a significant amount of its resources to fighting alleged copyright piracy.

During the session that approved Bill 510, the Panamanian Congress said: “...with this bill, the country will count with an appropriate and effective norm for the protection of authors, industry, culture, information, entertainment and telecommunications”. In no moment has it mentioned users’ rights or a balanced approach adequate to the digital age, nor proven to generate jobs or wealth for Panamanians.

Colombia

In another corner of Latin America, harsher copyright enforcements are also being enacted to uphold terms of an FTA with the US. Colombia signed their trade agreement with the US six years ago, which bound it to implement stricter copyright enforcement measures. The FTA did not preclude Colombia from adopting flexible copyright exceptions and limitations that would protect Internet users and counterbalance the heightened IP enforcement obligations, but it also does not require them. Did Colombia take advantage of this flexibility, which is also protected under international treaties and “soft” law, such as the Development Agenda?

No, Colombia did not. Instead, they rushed a bill, nicknamed Ley Lleras, into law within three weeks before President Obama’s visit earlier this year. The short timeframe, the government’s lack of respect for civil society, and its neglectful treatment of Congress as a bureaucratic institution all undermine what should be the core of the discussion—the need for balanced and pragmatic reform that empowers Colombians as digital citizens.

Ley Lleras was fast tracked and signed into law on April 13, 2012. Its text, for instance, 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. This law also goes beyond what US law, and creates liability for circumventing technologically effective measures imposed to control “access and unauthorized uses of works”. Although the Colombia-US FTA only requires that “willful” criminal infringers be punished, the new Colombian Copyright law sanctions those who are unaware that their non-profit acts may constitute an infringement.

What Can Be Done

While the law has already been passed in Colombia, there is still a small chance that Bill 510 can be stopped in Panama. We urge the President of Panama not to sign this law and to provide civil society an opportunity to be part of this process. We also urge Panama to sign onto the Open Government Partnership and implement a 21st century democracy guided by participation and transparency. The Panamanian government should be aiming to implement policies that support and further innovation and creativity, rather than enact copyright policies that undermine the technological and economic advancement of their own nation.