Date: April 20 - 2020

Colombia’s Copyright system (Actually Author Right. The main difference between Copyright and Author Right being the fact that under author rights, the author (a natural person or persons) will always maintain certain rights, called moral rights, which are inalienable (cannot be assigned or renounced), as opposed to the patrimonial rights, which may be assigned or renounced. The moral rights under the Author Right system in Colombia are, summarily: i) Paternity right; ii) right to oppose modification, deformation or mutilation; iii) keep his work unpublished or unedited until his death; iv) alter the work before or after publication; and v) withdraw the work from circulation or suspend any use, even after authorizing it.) is regulated mostly through two norms, Law 23 of 1982 and Andean Community Decision 351 (issued on December 1993), although other regulations apply, including Colombia’s Criminal Code. Modernization of Colombia’s copyright system, or at least some form of harmonization with international trends, has been needed for quite some time now. In addition, Colombia’s Free Trade Agreement with the US, finalized in 2006 and which came into force in Colombia in 2012, also provided Colombia with certain obligations with respect to Copyrights.

On July 12, 2018, Law 1915 of 2018 came into force, whereby the Colombian government effectively has attempted to modernize and uplift Colombia’s copyright system. The Law introduces modifications to several areas, including:

• Specifying the extent of protection in the digital world of certain economic rights for copyrights and neighboring rights;
• Increasing the term of protection for economic rights of neighboring rights when the titleholder is a legal entity;
• Providing elements directed to technical means of protection of works;
• Updating the limitations and exceptions to copyrights and neighboring rights;
• Incorporating a regime for orphan works;
• Modernizing certain enforcement aspects.

In relation to the extent of protection in the digital world of certain economic rights for copyrights and neighboring rights, Law 1915 of 2018, for example, includes language to specifically mention that the author has the exclusive right to authorize or prohibit the reproduction of the work by any means, whether permanent or temporary, including temporary storage through electronic means. It also includes language to note that the author has the exclusive right to authorize or prohibit public communication by any means, wired or wireless, including making it available to the public for access at the time and place of their choosing.

As to the term of protection for economic rights of copyrights and neighboring rights when the titleholder is a legal entity, the same is now 70 years. For copyrighted works, the 70 years are counted from the end of the calendar year of the first authorized publication of the work. If no authorized publication is made within 50 years counted from the creation of the work, the term will be 70 years as of the end of the calendar year of the year the work was created. For neighboring rights, the 70 year term is counted from the end of the calendar year of the first authorized publication of the performance or phonogram. If no authorized publication is made within 50 years counted from the first performance or phonogram, the term will be 70 years as of the end of the calendar year of the first performance or phonogram. As to broadcasting rights, the term is 70 years counted from the end of the calendar year in which the first broadcast was emitted.

In relation to the elements directed to technical means of protection of works, Law 1915 of 2018 lists certain actions which will result in civil responsibility, notwithstanding any other responsibility arising from infringement on copyrights or neighboring rights. Some of these actions include:

i) Evade effective technical means¹ imposed to control access to a protected work, performance or phonogram, or which protect any copyright or neighboring right from unauthorized use.

ii) Manufacture, import, distribute, offer, supply or commercialize by any means, devices, products or components, or offer or provide services which, with respect to effective technical means, are publicized or commercialized with the purpose of evading such technical means, or have a limited purpose or significant commercial use different to evading such technical means, or have been designed, produced or used principally with the purpose of permitting or facilitating evading such technical means.

Law 1915 of 2018 included additional limitations and exceptions to copyrights and neighboring rights. One exception worth mentioning is the temporary electronic reproduction of a work, performance, phonogram or fixed broadcast, that is transitory or accessory, and which forms an integral and essential part of a technical process, whose sole purpose is to facilitate transmission within a computer network between third parties by an intermediary, or the licit use of a work, performance, phonogram or fixed broadcast which does not on its own have an independent economic basis. The Law further indicates that it understands that temporary electronic reproduction includes technical processes that are necessary in ordinary computer, digital device or Internet operations, so long as the elements of the exception indicated are met.

As far as orphan works, Law 1915 of 2018 provides a definition for such works, as well as its terms of use by public service entities, such as libraries, museums, conservation entities, archives, teaching centers and public broadcasting entities, domiciled in Colombia.

Finally, with respect to modernizing certain enforcement aspects, the following elements introduced by Law 1915 of 2018 are worth mentioning:

i) Competent judicial authorities may order the infringer to provide information he/she may have on other people involved in the infringement, as well as information on the means, products or distributions channels used in the infringement.

ii) For all copyrights and neighboring rights infringement cases, as well as those relating to evasion of technical mans of protection, the Judge may order the destruction of all products and materials used in the manufacturing of any infringing products, without any compensation to the infringer.

iii) Plaintiff may choose to obtain damages through the system of pre-established damages², or the regular damages system, although Law 1915 of 2018 indicates that the Government shall regulate the pre-established damages system to apply.

iv) It has included all of the actions considered infringement by Law 1915 of 2018, in particular those directed to evading effective technical means of protection, as crimes by adapting article 272 of the Colombian Criminal Code. However, one important limitation introduced, is the inclusion of language requiring that the purpose of the criminal act be a commercial advantage or private economic gain.

¹ Effective technical means is defined by Law 1915 of 2018 as the technology, device or component, which in the course of its normal operation is suitable to control access to a protected work, performance or phonogram, or to protect any copyright or neighboring right from unauthorized use, and which cannot be evaded accidentally.

² Pre-established damages imply that the plaintiff does not have to provide evidence of the value of the damages suffered, but the Judge will determine the amount of damages based on specific criteria and within a value range, where the criteria and the value range is what the Government will have to regulate for these cases specifically.