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Preventing Piracy or Creativity – The Debate Over The Ley Lleras, Colombia’s Proposed Version of the Digital Milennium Copyright Act

May 6, 2011

Ed. Note: This article appeared in April 2011 Latin American Law & Business Report published by Thomson Reuters/WorldTrade Executive. See http://www.wtexecutive.com

A familiar debate is raging in Colombian intellectual property circles — copyright holders versus consumers of information — over whether copyright laws prevent piracy or creativity. 

The debate arises in the context of a proposed law “to regulate infringement of copyright and related rights on the Internet.” submitted to the Colombian Congress by the Minister of Justice and the Interior, German Vargas Lleras.[1]  For that reason, many call it the “Ley Lleras” or “Lleras Law,” it is in reality Colombia’s attempt to catch up to the United States, the European Union, and much of the rest of the world’s economies in striking a balance between rights holders and information consumers. This is a familiar debate because in the United States, it was resolved — as a legislative matter, anyway — by Title II of the Digital Millennium Copyright Act of 1998, which Title is sometimes referred to as the Online Copyright Infringement Liability Limitation Act (OCILLA).

The Lleras Law would create a safe harbor for online service providers — Internet service providers, storage providers, and search services, among others – who, upon notice from a rights holder demonstrating its copyrights as set forth in the law, must block access to or remove an allegedly infringing work in order to avoid damages liability.  A counter-notification procedure protects those accused of posting infringing material who make a demonstration that the material is not protected.

The law would also establish procedures for protective measures pending the outcome of legal proceedings over the alleged infringement, and imposes criminal liability for posting protected works in a digital format online for commercial purposes. This is often referred to as piracy, though many also consider it piracy when it is not for commercial purposes.

There are opponents, and the major press has included a lively presentation of their views, but they rely on several myths that have to be busted. One myth is that the Lleras Law somehow changes the balance of rights protected copyright laws, and in a bad way. The plain fact is that the proposed law does not create or change the rights protected by copyright laws, such as the length of copyright protection, what constitutes fair use, or what is in the public domain. It only deals with online intermediaries, excusing them from the obligation to patrol their services to prevent infringement, imposing the policing burden instead on rights owners.

In one key respect this myth is true, because the Lleras Law criminalizes piracy. Article 17 of the Lleras Law will make it criminal to: “Make available through a computer network accessible to the public, for commercial purposes, a work of literary or artistic character or selection protected by related rights, cinematic works, sound recordings, video, computer software, photographic works, among others, who sells or offers reproductions of them in digital format via the networks mentioned.”  Pardon the pun, but this could be music to the music industry’s ears, and for Colombian consumers too. After all, Colombia has a 55% piracy rate according to the Business Software Alliance, which alleges this costs industry $244 million.[2] Anything that reduces that risk increases the probability that rights owners will sell their works in Colombia in digital form. Bring on the protection, and iTunes and Netflix should follow.

Another myth says the Lleras Law will stymie content innovation, citing such innovations as remixes, mashups, and cutups. The safe harbor/take-down approach enshrined in the law, however, is not new, and it has not killed these “innovations” that, nevertheless, admittedly make use of an author’s work in many cases without the author’s permission. Consumers who want free access to all information, irrespective of the wishes of the author or his publisher, will complain this law prevents innovation by the free and unrestricted use of other authors’ content, but it does not restrict use of content with authorization. Critics may be right that the copyright laws should facilitate transactions with rights owners, such as getting permission for mashups, but they ignore organizations like ASCAP and others that facilitate royalty payments on a uniform model and scale. The real problem is that nothing in life is free.

It is true that the Lleras Law will likely stymie one form of innovation, and that is the creation of online intermediaries that are dedicated to circumventing authors’ rights in the digital space. Online intermediaries whose model was based upon and profited from illegal file sharing, like Napster, have gone the way of the (North, not South, American) condor, but models that protect author’s rights actually abound in markets that respect those rights.

The Lleras Law proposal has the full support of a highly popular President whose national coalition party dominates the Congress. An innovative Ministry of Technologies, Information and Communications supports the bill, and a rapidly expanding middle class in Colombia thirsts for internationally available content. Like sophisticated users everywhere, they will happily sign up for an use content provided in the digital space and accept along with it the restriction against unauthorized use of others’ creations.

The smart money is counting on passage of the Lleras Law. It demonstrates that Colombia takes seriously its impending obligations under the intellectual property chapter of the US-Colombia Trade Promotion Agreement and that Colombia’s government wants its citizens to have access to sites like iTunes and Netflix that are unavailable in Colombia now because it is on the “IP Blacklist” due to persistent problems with intellectual piracy that cause many major rights owners to shun the country.

 

 


[1]               The text of the Lleras Law and a translation I prepared can be found here..

[2]               Colombia Reports, “ Piracy Levels in Colombia Remain at 55%,” available at http://goo.gl/fb/NBo8X , last viewed April 26, 2011 4:24 PM.

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