Article published on April 6, 2011 in Derecho de Autor, Libertad de Expresión, Noticias by Alberto Cerda Silva* (NGO Derechos Digitales) Translated by, Astrid E. Sánchez (astrid.eliana@gmail.com) miembro del Partido Pirata Colombiano.
Bill in Colombia: Copyright 4 – Human Rights 0
The government of Colombia has just submitted to the legislative process a bill regulating liability for infringement of copyright on the Internet. The initiative, which goes beyond the provisions of any other country in this respect, promises protection at any cost, sacrificing the rights of users and the competitiveness of the local Internet Service Providers.
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The law provides broader protection than usual in other countries. The law protects not only works, but any information and/or content, not only forcing Internet Providers, but to all people, to adopt technical and organizational measures to prevent infringement of copyright on Internet . So, will be accountable to the law from the neighbor that keeps his Internet connection open, to the public libraries and educational institutions. And although the law does not require “patrolling” the Internet, people who provides access are obliged to do so when the authority requires it, the law does not require a warrant.
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The law gives not guarantee to the Internet service providers. Despite the significant number of obligations and burdens the law places on the shoulders of those who provide Internet service, comply with this law will not suffice, because the law leaves except the general rules to go after service providers; so that right holders make effective the “responsibility” for the infringement of their rights on the Internet.
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The law provides for notification and down of infringing content without a warrant. In effect, the holder of the copyright concerned may directly notify the Internet service provider on the allegedly infringing content, which must block access. However, the law fails to require guarantees to prevent the mechanism being used improperly by the holders of rights, and every indication that, in order to avoid liability, service providers will simply block. Given the serious risk to freedom of expression and other fundamental rights, the procedure should be done through a court, but the law only brings into play the judge in the complaint procedure.
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The law requires service providers to identify users at the request of the owner of the copyright beyond that allowed in other countries. In Europe not all violations require to identify users, but only in severe cases, in criminal cases. In the U.S., only service providers that host content are required to identify their users, but not those who simply provides access to the Internet. The government of Colombia does no exception whatsoever.
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The law establishes a new penalty without a trial: the disconnection of Internet users. This new criminal penalties equivalent to ostracism in modern times, may be taken by the judge for final decision. However, the law authorize the imposition as a precautionary measure, possibly before the trial itself, and even by a judge that is not competent, all in violation of various guarantees of due process.
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Through this bill, the government of Colombia partly complies with the implementation of the Free Trade Agreement with the United States, although it has not yet ratified the agreement. In fact, the United States Congress has not approved the treaty, and instead, has expressed serious misgivings about the protection of human rights and labor rights in Colombia. If the bill succeeds, the U.S. Congress should add to its concerns the inadequate respect for civil rights, like the rights to a fair trial, privacy, and the presumption of innocence, among others.
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*Alberto Cerda Silva is Director of Studies of NGO Derechos Digitales, and professor of law and new technologies in the Faculty of Law at the University of Chile.
