Colombia\u2019s Congress recently approved Law 201 of 2012, popularly known as \u201cLleras Law 2.0,\u201d which deals with copyrights and intellectual property. Passage of this law was fast-tracked in an effort to coincide with Barack Obama\u2019s visit to Colombia for the Summit of the Americas. Lleras Law 2.0 purports to take a hard line on piracy and counterfeiting by establishing stricter sanctions. Colombia\u2019s new copyright law also attempts to better align Colombia’s intellectual property laws with U.S. copyright regulations, as part of the two countries\u2019 bilateral free trade agreement (\u201cFTA\u201d).<\/p>\n
Even though the FTA does not preclude Colombia from adopting flexible copyright exceptions and limitations, the Lleras Law 2.0 is \u2013 on its face \u2013 stricter than U.S. copyright law. Among the more controversial provisions are the followings:<\/p>\n
(i) Article 5 provides copyright protection to \u201c[a]ny form of reproduction of the work, permanent or temporary, by any means of procedure including temporary electronic storage.\u201d \u00a0Because the Lleras Law 2.0 does not define the meaning of the word \u201cstorage,\u201d temporary copies in random access memory (RAM) \u2013commonly known as \u201ctemporary buffer copies\u201d- are arguably subject to the copyright owner\u2019s exclusive reproduction right under this law. \u00a0In contrast, U.S. law does not prohibit reproduction \u201cin any form.\u201d U.S. Law prohibits reproduction of copyrighted works in copies or phonorecords; it does not include an extension to temporary storage in electronic form.\u00a0 Indeed, U.S. law requires that a copy be sufficiently permanent or stable in order to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.<\/p>\n
(ii) Article 6 expands copyright protection from 50 to 70 years from the year of its first publication, or a term of 70 years from its creation, if the work was not published within fifty years after its creation. \u00a0As a general rule, under U.S law, works created after January 1, 1978, are protected for the life of the author plus an additional 70 years. \u00a0For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors.<\/p>\n
(iii) Articles 13 and 14 prohibit the transmission of TV signals over the Internet by land, cable or satellite of television signals without permission from the owner of the copyright for the signal or its contents \u201cregardless of\u201d any limitations and exceptions to the exclusive rights in Colombia\u2019s legislation.\u00a0 It also punishes any user who links to news or TV programs that are published or broadcasted on a blog or website.\u00a0 Arguably this Article 13 does not include general limitations and exceptions.\u00a0 Therefore, for instance, an Internet retransmission of portions of a terrestrial broadcast for educational purpose might be considered a non-infringing use.<\/p>\n
(iv) Article 15 establishes some exceptions to the anti-circumvention provisions. \u00a0Article 15(g) establishes a stricter approach to the process by which new exceptions to the anti-circumvention provisions will be identified.\u00a0 According to the new law, only the legislature has the final power to act whenever the governmental agencies find a substantial adverse effect on non-infringing uses.<\/p>\n
(v) Article 16 carries a potential prison sentence of four to eight years for those persons that transmit TV signals over the Internet by land, cable or satellite of television signals without permission from the owner of the copyright. \u00a0Because this provision does not include the word \u201cwillful,\u201d it may arguably apply on a wider range of infringers, including those who were unaware that they were breaking the law.\u00a0 No threshold level is identified in this provision for the imposition of the most severe criminal penalties on non-commercial infringers.<\/p>\n
This new copyright and intellectual property regulation has been met with much opposition in Colombia, where many believe the United States is forcing Colombia and other countries to adopt stringent intellectual property laws that it hasn\u2019t adopted itself.\u00a0 \u00a0However, the only possibility of repeal belongs to the Constitutional Court, which is the entity responsible for ensuring the integrity and hegemony of the Colombian Constitution. A Congressman for the Polo Democratico Party, Camilo Romero, has already filed a lawsuit before the Constitutional Court to repeal the law. It is very likely that the Constitutional Court will find the Lleras 2.0 law unconstitutional, among other reasons, because of its fast-track approval. Traditionally, the Constitutional Courts has required the Congress to have a \u201cmeaningful debate\u201d before approving a bill. But we shall wait and see.<\/p>\n","protected":false},"excerpt":{"rendered":"