July 23, 2014 | By Maira Sutton

Colombian Student Faces Prison Charges for Sharing an Academic Article Online

In many parts of the developing world, students face barriers to access academic materials. Libraries are often inadequate, and schools and universities are often unable to pay dues for expensive, specialized databases. For these students, the Internet is a vital tool and resource to access materials that are otherwise unavailable to them. Yet despite the opportunities enabled by the Internet, there are still major risks to accessing and sharing academic resources online.

A current situation in Colombia exemplifies this problem: a graduate student is facing four to eight years in prison for sharing an academic article on the Internet. He wasn't making a personal profit from sharing the article—he simply intended for other scientists like him to be able to access and cite this scientific research.

Diego Gomez, 26, is a Master's student who has been researching biodiversity and working on the conservation of reptiles and amphibians for several years in the South American region. Throughout his young career, the biggest obstacle he faced was in accessing academic resources that existed on global research databases. As a student at a small university in Armenia, the availability of research papers was so limited that he often had to save money to make trips to Bogotá to access biological collections, articles, and databases only available to him at natural history museums and libraries at the capital city.

Over time, he increasingly came to depend on the Internet. It enabled him to read relevant research, share documents, and communicate with others in his field. Despite the online resources that were available, there were still major barriers that prevented him from accessing the plethora of research that existed. So when he and others came across papers that were crucial to their work, they often shared it online for other researchers to access. Gomez says:

The important thing is to make a correct citation, attributing researchers’ work by indicating their name and year of publication and, of course, not claiming the work of another researcher, but to recognize it and value it. Therefore, what we usually do is to reference the findings and make them available to those who need them.

One day a couple of years ago, he came across a paper that was especially useful to his field work. He then later shared the research online on the site, Scribd. The author of the paper then filed a lawsuit over the “violation of [his] economic and related rights.” Under the allegations of this lawsuit, Gomez could be sent to prison for up to eight years and face crippling monetary fines.

The Criminal Charges

He is being sued under a criminal law that was reformed in 2006, following the conclusion of a free trade agreement between Colombia and the United States. The new law was meant to fulfill the trade agreement's restrictive copyright standards, and it expanded criminal penalties for copyright infringement, increasing possible prison sentences and monetary fines.

Colombian digital rights organization, Fundación Karisma, is supporting Gomez in his case to fight against these excessive criminal charges. Carolina Botero, staff attorney at Fundación Karisma writes (translated from Spanish):

The rationale is the potential damage that "piracy" in the industry generates. Without prejudice to the pending debate on the subject, it should be clear that the actions of users, non-profit activities, and sharing, are not crimes. […] In a society that has a disruptive technology like the Internet, the exercise of the rights to education, access to science and culture, and respect for freedom of expression must be respected.

Colombia does not have flexible fair use system like in the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and are narrowly tailored to some specific situations that are not at all applicable to the digital age. Therefore none of these will apply directly to his case even if it was done for educational purposes.

Fortunately, Gomez still has a strong legal defense against these exorbitant penalties. Under Colombian criminal law, there are two main issues that the court will also need to consider. The first is mens rea, which weighs the malicious intent behind the action. Clearly, Gomez had no intention of violating copyright for personal gain. Which gets us to the second important legal consideration, called antijurídica: whether there was actual harm against the economic rights of the author. Initially the article was posted on Scribd and was available for download without a fee. But at some point afterwards, the website changed its terms of use to require unregistered users to pay five dollars to download documents. When Gomez realized this, he took down the article immediately. The author of the paper may have believed that Gomez was attempting to profit in light of Scribd's new fee system, but Gomez did not make anything off of the work nor did he intend to do so.

There is a Supreme Court ruling that further weighs this legal consideration in his favor. In 2008, the highest Colombian court ruled that an infringing activity can only be criminal if there was intention to profit from the copyrighted work. The decision was partially based on international law—the Berne Convention, which carries an exceptions and limitations framework called the three-step test. This test is a way of determining whether a certain use is legal as long as it doesn't conflict with the “normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” Since Gomez was clearly not sharing academic articles for personal profit, there is firm ground to assert that his actions were not criminal. Botero of Fundación Karisma comments on this point:

In 2011, Diego published on the Internet a thesis that was defended in 2006. The fact that a scholar author believes that after 5 years someone who spreads his scientific findings is harming his economic interests totally ignores the importance of science in development, in this case, in the conservation of the biodiversity in Colombia, the second most biologically diverse country in the world.

This case exemplifies the real life harm of overreaching restrictions due to excessive laws that protect the “economic rights” of authors. Gomez only wanted to share these articles to further his life mission to protect native wildlife and to allow others with a similar passion to access this research. He is only one of countless thousands who risk themselves every day to push against the prohibitive restraints of copyright. We need major reform of our laws, both internationally and domestically, to ensure that people are not made criminals for promoting scientific progress and exercising their creative expression. In other words, for doing exactly what authors' rights laws are allegedly intended to do.

~

Additional Resources:

Diego Gomez has written about his story (translated from Spanish)

Fundación Karisma's website Compartir No Es Delito (Sharing is not a Crime)


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