Last Friday while celebrating the Internet day the government introduced a Bill, reproducing essentially the text of the former Law1520 (Ley Lleras 2) before the Congress.
Despite the several citizen claims (last one) to open a civil dialogue when implementing the US FTA obligations before taking them to parliament, and after 3 failled attemtps to reform the Copyright system during the last 2 years (Ley Lleras 1 on ISP liability was filed , Law 1520 or Ley Lleras 2 that was implementing other copyright provisions was declared unconstitutional, and the 001 bill that developed some basic exceptions but in a very restrictive way and was finally retired this past week.
On the 25th April Inside US Trade said that the Colombian government expected to introduce and pass the implementation laws before the end of this Congress period (june 20th). We still doubt that the government will try another fast track that will face civil resistance to another not participatory process and political uncertainty since we are in a year previous to elections.
The new text is almost a copy/paste with some new order, a couple of withdrawals, a new article on pre-stablished liability remedies.
We have basically the same concerns on this new bills that were also addressed by decens of law proffessors in the world last year:
1. The definition of profit as any gain or advantage that can be obtained from something goes far beyond what the FTA intended and must be challenged as it will have chilling effects on the interpretation of copyright norms, imagine alone the reduced scope of exceptions and limitations depending on this characteristic.
2. 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 without considering that this 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.
3. The protection is extended from 50 years to 70 years in the case of corporations without considering that currently even in the US there is a claim to revise this terms, as Maria Pallante rescently suggested.
4. The bill introduces in Colombia a confusing language of the three-steps test that can be more restrictive. This provision is similar to the one the US has proposed to be included in the TPP, this is a confining formulation that will constrain future Colombian legal developments on exceptions and limitations in a manner not defined by Berne, nor the TRIPS.
5. Like in the former article 13 of Law 1520 this 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. The inmunity from the general limitations and exceptions of the copyright law is not just unbalanced vis a vis the commercial partner (US) but is also unconstitutional on the grounds of freedom of speech.
Aclaration Note. We must acknowledge that the new text of this article withdraws a sentence where the Colombian State was giving up it’s capacity to create exceptions for these cases, This helps to clarify that there is no inmunity, but the language should be more precise into asserting that exceptions and limitations apply also in cases like these.
We are working on a new version of comments to feed the public discussion but we certainly believe that international support for the claim to openly discuss and debate all Copyright reforms that will impact the new Information and Communicition Technology environment. Please follow up Karisma www.karisma.org.co and RedPaTodos www.redpatodos.co actions to protect the public participation that will help us impact this law.
Another analysis about this subject, written by Andrés Izquierdo, published in infojustice is available here.
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