In Colombia, executive lawmakers are hastily pushing through a new copyright reform law for Congressional approval ahead of President Barack Obama’s visit to Colombia in mid-April for the Summit of the Americas. In doing so, they are skirting existing legislative processes and forcing through a bill that exceeds international and US norms at the cost of Colombian citizens’ rights. Bill 2011 is the latest attempt to make Colombia’s intellectual property laws compliant with the US-Colombia Free Trade Agreement (FTA) signed in 2006. Bill 201 is yet another copyright enforcement initiative being forced through legislative process without proper oversight or public discussion, a result of the US forcing another democratic nation to implement excessive IP norms through commercial trade obligations.
Colombia signed the FTA with the US six years ago, which bound it to implement stricter copyright enforcement measures. The FTA does not preclude Colombia from adopting flexible copyright exceptions and limitations that would protect Internet users and counter-balance the heightened IP enforcement obligations, but it also does not require them. FTA countries focus on implementing their obligations, and the rest comes down to domestic lobbying pressure.
Despite the flexibility in the FTA, this bill and the one that came before it, Ley Lleras, attempt to enact provisions that are harsher than international copyright norms. Ley Lleras was introduced last year, but legislators withdrew the bill following mass opposition from Internet users. Online protests successfully defeated Ley Lleras, but lawmakers are back trying to pass another copyright reform law in anticipation of Obama's arrival in Colombia. They are using a legislative procedure, colloquially called “a pupitrazo," that fast tracks the process and oversteps various legislative rules. In doing so, they are ignoring the current reality of content remixing and sharing brought about by the Internet, trying to forge ahead with hurtful reforms that would violate Colombians’ human rights and economic liberties.
Colombian lawyers’ collective RedPaTodos and American University’s Info Justice Project have both analyzed Bill 201. They have both concluded that the bill is an overly broad implementation of the Colombia-US FTA. Bill 201 goes further than necessary to implement the FTA’s obligations to ban circumvention of copyright holders’ digital locks. In many instances, the language is recklessly vague in a way that welcomes harmful judicial interpretation. Here are some summaries of the most problematic aspects of the bill:
The FTA requires the Colombian government to provide criminal sanctions for copyright infringement that is done willfully and on a “commercial scale,” and to establish criminal penalties to defer future infringing activities. Like previous US FTAs, it misleadingly defines “commercial scale” to include non-commercially motivated infringement, forcing US trading partners to adopt the US legal standard.
Colombia passed a criminal reform bill in 2006 that enacted many of these provisions, but Bill 201 goes even further. Under it, copyright infringers could face harsh criminal penalties, whether or not the individual is aware of committing infringement. It sets up severe penalty provisions including a minimum prison sentence of four years and significant monetary fines. Since the definition of infringement encompasses the act of copying a product for the purpose of distribution, and the bill creates no minimum threshold for applying criminal sanctions (unlike US law), even someone creating a CD for a friend could be fined or put in jail. Thus criminal penalties could potentially be applied for a broad range of commonplace activities, even where they would pose minimal economic harm to rightsholders.
Lengthened Terms of copyright
In order to comply with the terms of the FTA, Colombia will have to extend its minimum term of copyright from 50 years to 70 years after first publication for works owned by corporations. This is beyond both the existing internationally agreed terms and even beyond US law. Moreover, the bill does not explicitly say that the extension would only apply to newly created works. While the bill wouldn't apply to content already in the public domain, it is plausible that it could retroactively apply to existing works with protection periods already in effect, further entrenching content industry monopolies and increasing the cost of access to knowledge for Colombian citizens.
Digital Rights Management [DRM], or technological protection measures [TPMs] are software or hardware “locks” added to copyrighted products to restrict copying and other uses of works. These include digital controls on e-books, videogames, and software. Some countries have adopted specific “anti-circumvention” laws that prohibit breaking or bypassing these digital locks, and prohibit (or simply regulate) the creation and distribution of tools, devices, and services that would be needed to circumvent TPMs for non copyright-infringing purposes.2
Like previous US FTAs, the Colombia-US FTA goes beyond what is required by the 1996 WIPO Treaties by requiring US trading partners to adopt the approach taken in the US Digital Millennium Copyright Act (DMCA). That requires countries to ban both the act of circumventing a technological measure that controls a copyrighted work, and prohibits the manufacture, distribution and trafficking of tools, technologies and services that can circumvent both access and copy control TPMs.
But Bill 201 goes beyond the DMCA in several important respects. Article 14 broadens the scope of the TPM ban in several ways. First, it bans circumvention of a technological measure even where that does not result in copyright infringement. In the US, several courts have required some form of link between copyright infringement and the ban on bypassing the TPM; one court has disagreed. Bill 201 therefore arguably goes further than current US law. Second, Article 14 creates a legal prohibition on the act of circumventing TPMs that control access to a copyrighted work, as well as TPMs that control “unauthorized uses” of that work. Third, Bill 201 has a narrower set of exceptions than the DMCA. The US has an important triennial administrative rule-making process that allows Internet users and other affected parties to petition for exemptions against the ban on the act of circumventing a TPM. Bill 201 takes the most rigid possible approach, requiring any exemptions to be granted through legislation passed through Congress after an executive review every 4 years. Finally, like the US law, Bill 201 creates criminal sanctions for TPM circumvention that is done for commercial advantage or private financial gain, but because Bill 201 creates a broader ban, these penalties apply to a greater range of possible activities. Enacting such a restrictive law regarding circumvention measures will set a bad foundation for Colombians to address problems with TPMs.
In order to protect personal data, last year’s Lleras Ley proposed to extend power only to the courts to request information on infringers. Article 19 of Bill 201 extends it to administrative authorities, which would effectively unravel Colombians’ due process and privacy rights.
Temporary Reproductions of Copyrighted Works
While the Colombian bill picks up the FTA’s controversial definition of copyrights to include “[a]ny form of reproduction of the work, permanent or temporary, by any means of procedure including temporary electronic storage," it ignores the limitations on that principle that exist in US law such as fair use, and judicial interpretation of the scope of the temporary reproduction right. If Bill 201 passes, it would restrict any form of temporary reproduction of content, and even ban Colombians from sharing content that would otherwise be considered non-copyright infringing under US copyright law.
Civil society responds
The announcement of this new sweeping copyright legislation was sudden and unexpected, especially given the news that lawmakers expected the bill to go through the Colombian House and Senate by mid-April. The draft went public on March 20, and though it was initially scheduled for a vote last week -- a mere 7 days after it was released -- the vote was fortunately postponed to next Tuesday, April 10.
Since they got word of this bill, civil society has been making efforts to draw citizens’ and lawmakers’ attention to problems with the Bill and to block its passage. Anonymous Colombia took down the Senate’s official website last week in protest, and there is growing awareness and opposition from Colombian Internet users. RedPaTodos, a coalition of Colombian copyright reformers, has been at the front of the campaign against the draconian bill. Having done the first analysis of the bill shortly after it went public, they are urging Colombians to send letters to their representatives to oppose the bill. Carolina Botero, prominent Colombian lawyer and activist for Karisma Fundación, wrote:
“The US should understand that there is no good in having the FTA as a tool for pressing small countries’ intellectual property laws without proper analysis and under social discontent – it should be really used to press for informed and equilibrated copyright laws that enhance the protection but with a social equilibrium for disabled people, education, libraries or users.”
EFF also strongly opposes this overbroad copyright bill. By focusing solely on extending the scope of rights and enforcement provisions, without considering counter-balancing exceptions and limitations, Bill 201 will harm Colombian citizens’ fundamental rights of freedom of expression and privacy, and significantly impede technological innovation in the Colombian economy. We have signed on to a letter to the Colombian House and Senate asking them to halt their plan to fast track this deeply problematic legislation, and to take the time to consider how to implement the US-Colombia FTA in a way that respects Colombia’s national public policy priorities, its international commitments as a member of the Organization of American States, and Colombians’ rights to free expression, privacy, and innovation.
For more information:
- 1. See the original bill here in Spanish: http://senado.gov.co/sala-de-prensa/noticias/item/13410-gobierno-radica-proyecto-para-implementar-tlc-con-eeuu
- 2. For more explanation regarding what is problematic about TPMs as explained in a blog regarding Canada’s C-11 Bill: https://www.eff.org/deeplinks/2012/02/canadas-c-11-bill-and-hazards-digital-locks-provisions