A proposed new arbitration law is circulating among legal circles in Colombia, and has reached me thanks to Daniel Peña of Peña Mancero Abogados.
There is good news. Recognition and enforcement of foreign arbitral awards has not followed the New York Convention, and can take up to two years (see my article on arbitration here and others here.)
All that is changing. The proposed law very closely tracks the he Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the “New York Arbitration Convention” or the New York Convention, Daniel says in his blog. You can see that for yourself with my translation, below – just compare Articles 111 and 112 to Articles V and VI of the New York Convention.
Colombia seeks to be the seat of more international arbitrations and these changes were needed. Any international arbitral award granted by a tribunal sitting in Colombia is treated as a national award and does not require recognition for enforcement, under the new proposal. An international award from a tribunal seated outside Colombia would require a simple application to the Civil Appeals section of the Supreme Court of Justice, but the grounds to oppose recognition are limited to those in the New York Convention.
Much more important, the time to decide recognition will be cut from two years (you read that right – see my earlier post on arbitration) to 30 days — ten for the opposing party to challenge recognition, and twenty after that for the Court to decide. There is no appeal of or challenge to its decision, under the proposed procedure.
I have translated Chapter IX on recognition and enforcement, below. Compare it to the New York Convention and you see that Daniel is right.
| CAPÍTULO IXRECONOCIMIENTO Y EJECUCIÓN DE LOS LAUDOS
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CHAPTER IX RECOGNITION AND ENFORCEMENT OF AWARDS |
| Artículo 111. Reconocimiento y ejecución. Los laudos arbitrales se reconocerán y ejecutarán así:
1. Un laudo arbitral, cualquiera que sea el país en que se haya proferido, será ejecutable ante la autoridad judicial competente, a solicitud de parte interesada. 2. La parte que invoque un laudo o pida su ejecución deberá presentar el laudo original o copia de él. Si el laudo no estuviere redactado en idioma español, la autoridad judicial competente podrá solicitar a la parte que presente una traducción del laudo a este idioma. 3. Los laudos dictados en arbitrajes internacionales cuya sede sea Colombia se considerarán laudos nacionales y, por ende, no estarán sujetos al procedimiento de reconocimiento y podrán ser ejecutados directamente sin necesidad de este, salvo cuando se haya renunciado al recurso de anulación, caso en el cual será necesario su reconocimiento. 4. Para la ejecución de laudos extranjeros, esto es de aquellos proferidos por un tribunal arbitral cuya sede se encuentre fuera de Colombia, será necesario su reconocimiento previo por la autoridad judicial competente.
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Article 111. Recognition and enforcement. Arbitral awards are recognized and enforced as follows:
1. An arbitral award, irrespective of the country in which it was rendered, will be enforceable before the competent judicial authority, at the request of an interested party. 2. The party seeking an award or applying for its enforcement shall present the original award or a copy of it. If the award is not in written in Spanish, the competent judicial authority may request the party to submit a translation of the award in that language. 3. Awards granted in international arbitrations with their seat in Colombia shall be considered national awards and, therefore, not subject to the recognition procedure and can be executed directly without it, except when recourse to cancellation has been abandoned, in which case recognition shall be required. 4. For the execution of foreign awards, that is, those rendered by an arbitral tribunal with its seat outside of Colombia, prior recognition by the competent judicial authority is required.
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| Artículo 112. Motivos para denegar el reconocimiento. Solo se podrá denegar el reconocimiento de un laudo arbitral, cualquiera que sea el país en que se haya dictado, en los casos y por las causales que taxativamente se indican a continuación:a) A instancia de la parte contra la cual se invoca, cuando ella pruebe ante la autoridad judicial competente del país en que se pide el reconocimiento o la ejecución:
i. Que para el momento del acuerdo de arbitraje estaba afectada por alguna incapacidad; o que dicho acuerdo no es válido en virtud de la ley a que las partes lo han sometido, o si nada se hubiera indicado a este respecto, en virtud de la ley del país en que se haya dictado el laudo; o ii. Que la parte contra la cual se invoca el laudo no fue debidamente notificada de la designación de un árbitro o de la iniciación de la actuación arbitral o no pudo, por cualquiera otra razón, hacer valer sus derechos; o iii. Que el laudo versa sobre una controversia no prevista en el acuerdo de arbitraje o contiene decisiones que exceden los términos del acuerdo de arbitraje. No obstante, si las disposiciones del laudo que se refieren a las cuestiones sometidas al arbitraje pueden separarse de las que no lo están, se podrá dar reconocimiento y ejecución a las primeras; o iv. Que la composición del tribunal arbitral o el procedimiento arbitral no se ajustaron al acuerdo celebrado entre las partes o, en defecto de tal acuerdo, a la ley del país donde se adelantó o tramitó el arbitraje; o v. Que el laudo no es aún obligatorio para las partes o fue anulado o suspendido por una autoridad judicial del país sede del arbitraje; o |
Article 112. Grounds for refusing recognition. Recognition of an arbitral award, irrespective of the country from which issued, can be refused exclusively on the following grounds:
a) At the request of the party against whom it is invoked, if it proves to the competent national judicial authority where recognition or enforcement is sought: i. That at the time the arbitration agreement was affected by some disability, or that the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made, or ii. That the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or the initiation of arbitration proceedings or could not, any other reason, to assert their rights, or iii. The award deals with a dispute not contemplated by the arbitration agreement or contains decisions on matters beyond the terms of thearbitration greement. However, if the provisions of the award relating to the matters submitted to arbitration can be separated from those that are not so submitted, the award may be recognized and enforced, or iv. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement between the parties or, failing such agreement, the law of the country where the arbitration occurred, or v. The award has not yet become binding on the parties or was revoked or suspended by
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| b) Cuando la autoridad judicial competente compruebe:i. Que, según la ley colombiana, el objeto de la controversia no era susceptible de arbitraje; o
ii. Que el reconocimiento o la ejecución del laudo serían contrarios al orden público internacional de Colombia. Si se hubiere pedido la anulación o la suspensión del laudo ante una autoridad judicial del país sede del arbitraje, la autoridad judicial colombiana, si lo considera procedente, podrá aplazar su decisión sobre el reconocimiento del laudo y, a instancia de la parte que pida aquello, esta podrá también ordenar a la otra parte que otorgue caución apropiada. |
b) Where the competent judicial authority finds: i. That, under Colombian law, the subject of the dispute was not subject to arbitration, or ii. The recognition or enforcement of the award would be contrary to public policy If any request for cancellation or suspension of the award has been made before a |
| Artículo 113. Competencia. Para conocer del trámite de reconocimiento de los laudos que conforme a la presente sección demanden del mismo será competente la Sala de Casación Civil de la Corte Suprema de Justicia, en única instancia y sin lugar a recurso o acción alguna contra su decisión.
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Article 113. Competence. Only the Civil Chamber of the Supreme Court of Justice shall have the power to hear a claim for recognition of awards under this section, in one instance and without remedy or action against its decision. |
| Artículo 114. Normatividad aplicable al reconocimiento. Al reconocimiento del laudo arbitral se aplicarán exclusivamente las disposiciones de la presente sección y las contenidas en los tratados, convenciones, protocolos y demás actos de derecho internacional suscritos y ratificados por Colombia. En consecuencia, no serán aplicables las disposiciones establecidas en el Código de Procedimiento Civil, sobre motivos, requisitos y trámites para denegar dicho reconocimiento, disposiciones que se aplicarán únicamente a las sentencias judiciales proferidas en el exterior. | Article 114. Regulations applicable to recognition.Recognition of arbitral award shall be subject only to the provisions of this section and those contained in treaties, conventions, protocols and other legal acts signed and ratified by Colombia. Consequently, the provisions of the Code of Civil Procedure, on reasons, requirements and procedures to deny such recognition, provisions that apply only to judgments handed down abroad, shall not apply. |
| Artículo 115. Trámite del reconocimiento. La parte que pida el reconocimiento presentara la solicitud ante la autoridad judicial competente acompañada de los documentos a que se refiere el artículo 111.En caso de encontrar completa la documentación, la Corte Suprema de Justicia admitirá la solicitud y dará traslado por diez días (10) a la otra u otras partes.
Vencido el término del traslado y sin trámite adicional, la Corte Suprema de Justicia decidirá dentro de los veinte (20) días siguientes. |
Article 115. Recognition process. A party seeking recognition shall submit an application to the competent judicial authority accompanied by the documents referred to in Article 111. When documentation is complete, the Supreme Court shall accept the request and give a period of ten days (10) to the other party or parties to respond. At the end of the ten-day period, without further procedures, the Supreme Court shall
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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.
[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.
Preventing Piracy or Creativity? The “Ley Lleras” Translated – Colombia’s Version of the Digital Millennium Copyright Act
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 submitted to the Colombian Congress [English translation] by the Minister of Justice and the Interior, German Vargas Lleras. 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.
The proposed law does not create or change the copyright laws. It deals only with online intermediaries, excusing them from the obligation to patrol their services to prevent infringement, imposing the policing burden instead on rights owners. Consumers who want free access to all information, irrespective of the wishes of the author or his publisher, complain this law prevents innovation, but it only seems to prevent innovation in circumventing authors’ rights in the digital space. The proposal demonstrates that Colombia takes seriously its impending obligations under 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.
I will have more to say about the Lleras Law in the near future. This post is designed to provide readers who are interested in the debate to rely upon the actual proposed Lleras Law itself — and not hyperbolic editorial descriptions — through an English translation I have prepared:
Bill ____ of ___
A bill to regulate infringement of copyright and related rights on the Internet.
THE CONGRESS OF COLOMBIA
DECREES
CHAPTER I
Criteria for Responsibility
Article 1. Internet service providers.
For purposes of this Act, an Internet service providers shall be deemed to be a person who provides one or more of the following services:
a) Transmits, routes or provides connections for material without changes in content;
b) Stores data temporarily in an automated procedure (caching);
c) At the request of a user stores material on a system or network controlled or operated by or for the service, and
d) Refers or links users to an online location using information search tools, including hyperlinks and directories.
Article 2. Liability regime.
Internet service providers, content providers, and users are responsible for the use of contents, in accordance with the general rules on civil, criminal and administrative liability. Information used in computer systems or networks will be protected by legislation on copyright and related rights if it meets the conditions for such protection.
Article 3. No general obligation of monitoring.
Internet service providers shall not, for purposes of this law, have any obligation to monitor the data they transmit, store or refer, nor any obligation to make any active search for facts or circumstances indicating illegal activity. The provisions of the preceding paragraph shall be without prejudice to orders from competent authorities to Internet service providers to perform some activity for the purpose of investigating, detecting and prosecuting criminal offenses or any violation of copyright or related rights.
Article 4. Exemption from liability of internet service providers.
Without prejudice to the applicable general rules of civil liability, in the case of any infringement of copyright and related rights committed by third parties that take place through systems or networks controlled or operated by natural or legal persons providing certain services identified in the following Articles, providers of such services will not be obliged to pay compensation if they meet the conditions laid down in the following items for limiting such liability, according to the nature of the service. In these cases, Internet service providers may only be subject to judicial injunctions referred to in Articles 13, 14 and 16 of this Act
Article 5. Service for data transmission, routing or supply connections.
Service providers of data transmission, routing or offering connections will not be held responsible for data transmitted provided that the provider:
a) Does not modify or select the content of the transmission. For these purposes it is not considered an alteration of the content, to use material handling technology necessary to facilitate the transmission through the network, such as the division of data into packets;
b) Does not initiate the transmission;
c) Does not select the recipients of information;
d) Establishes general and public conditions under which the service provider can make use of the right to terminate the contracts of content providers who are repeat infringers of the rights protected by the copyright laws or related rights;
e) Does not interfere with technologies for the protection and management of rights to protected works;
f) Does not create or select the material or its recipients.
Paragraph. In cases that meet the requirements of this section, the competent judge may only grant as injunctive or final relief reasonable measures to block access to specific infringing or allegedly infringing content that is clearly identified by the applicant and that do not involve blocking other legitimate content.
Article 6. Providers of services of temporary storage through automated processes.
Providers of services of temporary storage through automated processes performed for the sole purpose of making onward transmission of information to other recipients of services more efficient will not be held responsible for the data stored, on the condition that the provider:
a) Complies with the conditions of user access and rules regarding updating stored material that are provided by the provider of the site of origin unless these rules are used by it to prevent or interfere unreasonably with the temporary storage referred to in this article;
b) Does not interfere with compatible and standardized technology used in the site of origin for information about online use of stored material, when use of these technologies is performed in accordance with the law and compatible with widely accepted industry standards;
c) Does not change the content in transmission to other users;
d) Removes or expeditiously disables access to stored material that has been removed or to which access has been disabled on the site of origin when it receives a withdrawal request in accordance with the procedure laid down in Articles 9, 10, 11 and 12 of this Act.
e) Establishes general and public conditions under which the service provider can make use of the right to terminate the contracts of content providers who are repeat infringers of the rights protected by copyright or connected rights;
f) Does not interfere with technological for the protection and management of rights to protected works;
g) Does not create or select the material or its recipients;
Paragraph. In cases that meet the requirements of this section, the competent judge may take as injunctive or final relief reasonable measures to block access to specific infringing or allegedly infringing content that is clearly identified and/or terminate accounts determined to be repeat offenders of the provider service, which are clearly identified by the applicant, whose owner is using the system or network for activity that infringes copyright or related rights.
Article 7. Providers of storage services at the request of users for material stored on a system or network controlled or operated by or for the service provider.
Providers of storage services who, at the request of a user, stores, for the user or a third-party, material on a system or network controlled or operated by or for the service provider, will not be responsible for content stored on condition that the provider:
a) Has no actual knowledge of the alleged illegal nature of the data;
b) Does not receive a financial benefit directly attributable to the infringing activity, in cases where it has the right and ability to control such activity;
c) Removes or expeditiously disables access to material stored accordance with the provisions of Articles 9, 10, 11 and 12;
d) Publicly designates an agent to receive service of process and appropriate means to receive applications for withdrawal or blocking of apparently infringing material;
e) Establishes general and public conditions under which the service provider can make use of the right to terminate the contracts of content providers who are repeat infringers of the rights protected by copyright or connected rights;
f) Does not interfere with technologies for the protection and management of rights to protected works;
g) Does not create or select the material or its recipients;
Paragraph. In cases that meet the requirements of this article, the competent judge may only take as injunctive or final relief reasonable measures to block access to specific infringing or allegedly infringing content that is clearly identified; and/or terminate accounts determined to be repeat offenders of the service provider, which are clearly identified by the applicant, whose owner is using the system or network for activity that infringes copyright or related rights.
Article 8. Providers of services consisting of referring or linking users to a site online through the use of information search tools, including hyperlinks and directories.
Providers of services that effect services for search, link, or referral to an online site using information search tools, including hyperlinks and directories, are not liable for any data stored or referenced provided that the provider:
a) Has no actual knowledge of the alleged illegal nature of the data;
b) Does not receive a financial benefit directly attributable to the infringing activity, in cases where it has the right and ability to control such activity;
c) Removes or expeditiously disables access to material stored accordance with the provisions of Articles 9, 10, 11 and 12;
d) Publicly designates a representative to receive service of process and appropriate means to receive applications for withdrawal or blocking of apparently infringing material;
Paragraph. In cases that meet the requirements of this section, the competent judge may take as injunctive or final relief reasonable measures to block access to specific infringing or allegedly infringing content that is clearly identified and / or termination of accounts determined to be repeat offenders of the provider service, which are clearly identified by the applicant, whose owner is using the system or network for activity that infringes copyright or related rights.
CHAPTER II
Procedures
Article 9. Procedure for detection and removal of contents.
Service providers, meeting the other requirements laid down in Articles 6, 7 and 8 acting in good faith, who remove or blocking access to material based on a claimed or apparent infringement, shall be exempt from liability for any resulting claims, provided that in relation to material that resides on their system or network, they take reasonable steps promptly to inform the alleged infringer who put the material on the system or network of the withdrawal or disabling of the information on the system or network.
Paragraph. If the alleged offender makes a request to restore the removed or disabled material and is subject to jurisdiction in an infringement suit, the service provider must restore the material, unless the person who made the request for withdrawal or disabling seeks an injunction order within a reasonable time.
Article 10. Requirements for applications for withdrawal or blocking.
Applications for withdrawal or blocking contents made under the previous article by the holders of copyright or related rights or their respective representatives must comply with the following requirements:
a) Be submitted in electronic form or other written form;
b) Include the identity, address, phone number, and email address of the owner of copyright or related rights or their respective representatives.
c) The rights holder or his representative must be domiciled or resident in Colombia and, where appropriate, be subject to being called at trial, in behalf of the owner;
d) Attach information reasonably sufficient to permit the provider to identify the work or selection protected by copyright or related rights that is allegedly being used without appropriate authorization;
e) Identify the infringed rights, clearly indicating the owner of them and the type of offense;
f) Attach the URL or any other information reasonably sufficient to allow the service provider to locate the allegedly infringing material that resides within a system or network controlled or operated by it or for it, which is claimed be infringing or to be the subject of infringing activity and that is to be removed or have access to it blocked;
g) The rights holder or his representative must make a declaration expressing that he believes in good faith that the material is being used in a manner without the permission of the holder or of the copyright or related rights or his representative who is entitled to grant such permission or under the law;
h) If possible, attach information containing data enabling the service provider to identify the user of the supposedly infringing material;
i) Make a declaration to the effect that the information contained in the request for withdrawal or blocking is correct;
j) The application must be signed by the person making the request for withdrawal or blocking. For this purpose a signature transmitted as part of an electronic communication satisfies the described requirements.
Paragraph. Whoever knowingly provides false information concerning alleged violations of the rights recognized in this law shall indemnify the damage caused to any interested party, where such damages are the result of actions the network service provider takes based on such information.
Article 11. Obligation to report the removal or blocking of the alleged infringer.
Upon receiving a withdrawal or blocking request and verifying compliance with the requirements established in the previous article, the Internet service provider shall, within 72 hours of receipt of the complaint, inform users in writing of the withdrawal request based on alleged violations, providing the background provided by the rights holder or his representative.
Article 12. Elements of the application for reinstatement.
For the application to restore the removed or disabled material, mentioned in the paragraph of Article 9 to be effective, it must be in writing or by electronic notice and include the following:
a) The identity, address, telephone number, and e-mail of the alleged offender;
b) Identification of the material that has been removed and to which access has been blocked;
c) The location of the site at which the material appeared before it was removed or before access to it was disabled;
d) A statement under penalty of perjury in which the alleged infringer states that he provided the material and has a good faith belief that it was removed or disabled in error or as a result of misidentification of material;
e) A statement in which the alleged infringer agrees to be subject to orders imposed by any judicial authority of his domicile, or if the home is outside the territory of the party, any other judicial authority with jurisdiction anywhere in the territory of the party where the provider service can be found, and in which a claim for the alleged violation of copyright or related rights may be filed;
f) A statement which the applicant agrees to accept notification of any such claims;
g) The signature of the person making the request for restoration of the removed or blocked material. For this purpose the signature transmitted as part of a electronic communication satisfies the requirement described.
Article 13. Precautionary Measures.
Article 245 of Act 23 of 1982 shall read as follows:
“Article 245 .- The same persons mentioned in the preceding paragraph of this article may ask the judge to prohibit or suspend presentation, performance, display of a play, music, film and the like, to be presented performed or shown in public without permission of the owner or owners of the Copyright. Also, for breaches of copyright or violations of related rights in or through systems or networks controlled or operated by or for service providers, operators may request the judge of the domicile of the service, even without being competent to hear the action and as a precautionary measure, to withdraw or block access to infringing material that is clearly identified by the applicant (and/or terminate certain accounts of the service provider determined to be repeat infringers) that are clearly identified by the applicant, whose owner is using the system or network to undertake activity that infringes on copyright and related rights. Also, any other interim measure aimed at protecting rights, preserving evidence, and preventing further damage as result of the alleged infringement. However, in the case of providers of services of data transmission, routing or providing connections, the judge may only take as interim measures the adoption of reasonable measures to block access to infringing content determined to be clearly identified by the applicant and that does not involve blocking other legitimate content. To this end, the application for precautionary measures should clearly indicate:
1. The rights allegedly infringed, including specific information on the ownership of them and the type of offense;
2. The infringing material,
3. The location of the infringing material on the networks and systems provider respective services.”
Article 14. Requirements for protective measures.
Article 247 of Law 23 of 1982 shall read as follows:
“Article 247 . The measures referred to in Articles 244 and 245 shall be ordered immediately by the judge, provided that the applicant provides sufficient security to ensure that any damage that may be caused to the organizer or promoter of a theatrical, cinematic, or musical show, or Internet service provider or its users or subscribers, and presents a proof under the applicable law. The measure can be ordered by the municipal or circuit court of the place of the performance, or the domicile of the Internet service provider, for prevention, even if it is not competent to hear the trial. In all other ways the protective measure must comply with the relevant rules.”
Article 15. Delivery of information on suspected infringers.
If rights holders have applied for an injunction or have brought demand for final order of removal or blocking access to infringing material and/or termination of accounts, the judge may order the delivery of information that enables identification of the alleged infringer by the service provider concerned, including confidential information. The data thus obtained will be subject to the protection and reservation of personal data in accordance with the law.
Article 16. Final order of removal or blocking access to infringing material and/or termination of accounts.
The measures covered by Article 13 will take final effect when so ordered by the competent judge so orders. These measures require due consideration of:
1. The relative burden on the provider of services, on users, and on subscribers;
2. The proportionality to the damage inflicted on the right holder;
3. The technical feasibility and effectiveness of the measure, and
4. The existence of other, less burdensome to means to ensure the cessation of the infringement and restoration of the right being claimed.
These measures will be applied in a limited manner to access to online communication services to the public. When such services are purchased pursuant to packaged commercial offers including other services such as telephone or television, these measures do not apply to those other services.
Article 17. To Article 271 of Law 599 of 2000 (Penal Code), a new numbered subsection shall be added, as follows:
“8) 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.”
Article 18. Exceptions.
The provisions of this Act amend sections 245 and 247 Act 23 of 1982, add article 271 of Law 599 of 2000 (Penal Code), and repeal all other rules that are to the contrary.
Article 19. Effect.
This Act is effective as of its promulgation.
The Minister of Interior and Justice
Germán Vargas Lleras
What are people actually interested in learning about relating to Colombia law and business?
This site receives most of its visitors through Google searches. WordPress, which hosts this site, reports the actual search terms. I thought readers might find it interesting to see the searches, to reveal what is trending and what people are looking to learn about when they find articles on this site.
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Colombia’s Ambassador Silva Shows How Delaying the Trade Agreement Hurts US-Colombia Relations
Colombia’s Ambassador Gabriel Silva told a Washington, D.C. crowd at the NDN New Policy Institute that Colombia has been waiting a long time for the US-Colombian Trade Promotion Agreement (“TPA”) to be approved.
He reminded the audience that Colombia is a major US export market for agriculture. It is also a major supplier of coal and petroleum. However, Colombia’s low-margin exporters (such as the cut flower industry) were seriously hurt by the US Congress’s failure to extend the Andean Trade Preferences Act. Coupled with the Administration’s delays in submitting the TPA for approval by Congress, he at one point volunteered that Washington should strive to be more loved than feared in its foreign policy.
He responded to labor and human rights concerns by pointing out that the TPA already has human rights provisions in it. He also noted that the Colombian Congress voted down a proposal to disband labor cooperatives, and has passed legislation and is considering more to guarantee land reforms.
Answering questions about the prospects for approval of, Ambassador Silva told the audience that its text is closed and will not be reopened. He is uncertain whether there will be any more meetings with US Trade Representative’s office.
Addressing prospects for passage on the Hill, Ambassador Silva pointed out that Colombia has many friends, both Republicans and Democrats. There is a convergence with both parties to finish the agreement.
With President Obama about to start a Latin American tour that does not include Colombia this year, Ambassador Silva told the press that President Santos has no plans to come to visit Washington, D.C. at this time. He does, however, have plans to go to China. And, he will come to New York for a UN session to show his country’s solidarity on Haiti.
Beyond The Headlines on Passing The TPA: What Senator Baucus and Amb. Kirk Actually Said
The Senate Finance Committee held an important hearing this week when it invited US Trade Representative Ron Kirk to explain whether and when the Administration will submit the US-COL Trade Promotion Agreement to Congress. The result was a still split Administration position, reflecting its internal conflicts between pro-trade and economic recovery elements, on the one hand, and elements watching the re-election process and needing full support from unions especially at a time when, as in Wisconsin, the labor union movement is under siege. This is a false choice. Pro-union is pro-jobs, at home. Siding with union leadership on a foreign workers issue is fine until US jobs suffer and foreign workers aren’t helped. US workers gain when their employers engage in robust exports to Colombia, and US workers are sidelined watching Colombian firms buy farm and manufactured and high-tech products and services from China, Canada, Europe, the Southern Cone, India, and soon Korea.
Hanging tough, President Santos, through Ambassador Silva, called for passage of the TPA “as negotiated.” This was a tough stand, coming in the middle of talks started last month on unspecified changes the US sees as necessary to satisfy labor union forces in the Administration. Colombia means, in effect, we’re not very interested in negotiating further changes and incurring further delay and are prepared to go elsewhere if there is no deal to be done.”
More senators including Finance Committee Chair Baucus to take up the Colombian, Panamanian, and Korean agreements in the order they were negotiated and signed (as is Congress’s tradition). This is another way of saying we will hold up consideration of the Korea agreement until Colombia’s has been voted on. That is just what Senator Hatch said.
As I see it, the Administration will let the US-COL TPA pass on time, either grudgingly and as part of a compromise, or taking credit at the last-minute for cosmetic changes to a good agreement that has already been negotiated. The Administration will get to keep some “street cred” with organized labor’s leadership. Forces more concerned with jobs and relations with a vital ally and strong friend will pass the TPA. I stand by my published projections.
First, see how Ambassador Kirk pivots from generalities about progress in negotiations to a blunt reminder that the labor unions’ unspecified demands must be satisfied:
With the same engagement and bipartisan cooperation as on the Korea agreement, we will address outstanding concerns relating to the Panama and Colombia agreements. We will not be left behind as others secure greater market share at the expense of American exporters. To compete, we must access the world`s fastest growing markets on a playing field that is both level and reflects our values as Americans….
There has also been important activity regarding the Colombia agreement since I testified before the House Ways and Means Committee last month. Soon after that hearing, officials from USTR led a mission to Bogotá with officials from the Departments of State and Labor and the White House. Over the last few weeks, we have met with this committee`s staff as well as stakeholders to consult and seek advice on the issues raised. Together, we are working without delay to assess what we can do on issues regarding laws and practices affecting the protection of internationally recognized labor rights, as well as issues concerning violence against labor leaders and the prosecution of the perpetrators. The Obama Administration and the Santos Administration have a shared commitment to protect labor rights and workers from violence. I am committed to working with you to address the concerns identified this year and to prepare the agreement for Congressional consideration immediately thereafter.
(ed. – But…)
As we look to the future, the President has made one thing abundantly clear: we will not sign agreements for agreements` sake. They must be enforceable and of the highest standard, in the interests of our workers, farmers, ranchers and businesses. They must not simply replicate the templates of the past, but build frameworks for the future.
Hearing that testimony, Colombian officials in the room should have been left wondering a couple of things. Why did Kirk not show a bit more praise for their work? Kirk and others have more robustly acknowledged Colombian successes in reducing general conditions of violence. In fact, unsolved labor leader murders are at much lower levels than other kinds of violence. And why was Kirk so blunt, yet vague, about not repeating “old templates” (does he mean signed agreements?) and “highest standards” (for example?).
Finance Committee Chair Senator Baucus (Democrat) returned from his lengthy meetings and visits to Colombia over the last couple of weeks convinced of the need to approve the TPA. His is the most powerful voice backing passage and much more powerful in the Senate than the President’s. He focused on jobs and competition from China.
First, it is time to quickly resolve the outstanding issues in our pending FTAs with Colombia, Panama, and Korea, and we must approve all three agreements this year.
Colombia has a strong and growing economy, it is among the largest markets in Latin America for U.S. exporters, and it is a strategic partner in our fight against drug trafficking and terrorism.
I traveled to Colombia two weeks ago. I met with President Santos, his ministers, Colombia`s top prosecutor and labor leaders. I was struck by the progress that Colombia has made in strengthening labor rights, reducing violence and stepping up prosecutions.
Colombia has enacted reforms to make it easier for workers to form unions and bargain collectively. It has reduced the homicide rate of union members by nearly 90 percent, and it is prosecuting labor violence cases identified by Colombian labor unions as top priorities.
But more steps are needed, and President Santos has begun to take them. I believe that he is willing to work with us to take more steps, but he needs to know what we want him to do. We must map a course, and we must act now.
American farmers lost $1 billion in sales to Colombia over the last two years. And while China has tripled its share of the Colombian market, ours has declined by 20 percent. American jobs are at stake.
Last month, Senator Hatch and I sent a letter asking you to come to the hearing today prepared to discuss the specific issues that Colombia and Panama need to address, and we asked you to come prepared to announce an expeditious timetable for moving these agreements through Congress. We look forward to discussing both issues this morning.
Senator Hatch (the top Finance Committee Republican) said despite the Administration’s promises and appearance of action, it is no closer to submitting the TPA and that he will act if they will not:
At the top of a pro-growth agenda is trade policy. Yet instead of leading the way, we are falling behind our trading partners. While we wait, other countries are writing the rules of trade. While we hesitate, other countries are opening up markets for their workers.
And if this sorry record is not corrected, U.S. workers will continue to lose out on the economic opportunities afforded by free and open trade.
A case in point: Colombia.
In 2008, the United States was the main supplier of corn, wheat and soybeans to Colombia, accounting for seventy-one percent of the market. Today, our market share is just twenty-seven percent.
It does not take a Ph.D. in economics to understand this collapse.
While our trade agreement with Colombia collected dust, other countries were surging ahead.
The same pattern holds in Panama, where we continue to lose out on lucrative government procurement projects.
Some suggest that the strong interest in quick approval of our trade agreements with Colombia and Panama is driven by partisanship.
I am not going to pull my punches here. That is false. There is strong bipartisan support for these agreements in this Committee and in the Senate.
Any further doubts can be laid to rest by a recent letter from a bipartisan group of former government officials — including USTRs, White House Envoys to the Americas, and Assistant Secretaries of State — all calling for prompt ratification of our pending trade agreements with Colombia and Panama.
Now, I appreciate the work that the Administration has done in regard to Korea.
Korea is a friend and ally of the United States.
And, while we need to see more progress on beef access, it remains a strong agreement.
I support it, and want to see it move as soon as possible.
But I don’t believe the President will ever act on the Colombia and Panama agreements unless these agreements move with Korea.
This skepticism is not unjustified.
In 2009, the Administration said they were developing a plan of action to address the pending trade agreements in consultation with Congress and pledged to address any issues promptly.
Later, at the Summit of the Americas President Obama directed Ambassador Kirk to lead a review of the Colombia Agreement to solve outstanding issues.
In 2010 the Administration laid out general concerns but vowed to move the agreements forward at the appropriate time. A little later, they pledged to strengthen relations with key partners…with the goal of moving forward with existing agreements in a way that upholds our values.
Then, in 2011, President Obama vowed to pursue agreements with Panama and Colombia.
Just a month ago, the President directed USTR to immediately intensify engagement with Colombia and Panama.
And just yesterday we received testimony that says you are on track to resolve outstanding issues with Panama and are committed to addressing issues related to Colombia, both sometime this year.
Now, some might call this progress. But are we really any closer to having these agreements before Congress today than in 2009?
I find it hard to believe that the problem is a lack of information. The problem is a lack of political will, and a lack of political courage.
So far, the administration has talked a big game on these trade agreements, but when game time rolls around, they shrink from action. At some point, despite all the words, it is the administration’s inaction that speaks volumes.
This failure to act raises strong doubts about whether the President is serious about moving these agreements at all. Given past rhetoric, the recent promises of intensified engagement, commitments to work, and being on track are all fine and good.
But these promises are woefully inadequate.
After two years, it is still an open question whether the President will ever see fit to submit the Colombia and Panama agreements to Congress anytime in the near future, if at all.
Let me be clear. If the President will not act, I will.
If the President ignores the will of Congress and sends the Korea agreement without Colombia and Panama I will do everything I can to make sure that those two agreements are considered at the same time as Korea.
Given the gap between promises made and promises kept, I don’t believe the President has given Congress much choice when it comes to the Colombia and Panama trade agreements.
If we are to serve the national interest and get these two agreements approved, Congress must act with — or without — Presidential leadership.
Action without Presidential leadership is exactly what is going to happen. That will work well politically both for the divided Administration, facing a re-election while the labor union movement is under siege, and a Congress whose constituents are more focused on jobs and exports than votes in 2014.
Truckers Striking, Washington Eyeing, China Vying, and Billionaires Buying – This Week In Colombia Law & Business
Ask anyone who lives in Bogotá, the biggest problem in daily life – leaving aside this year’s seasonal rains that came early, stayed late, and would not stop – is transportation. Visitors arriving at the expanding El Dorado Airport (did it expand enough?) have a long slow ride on the Avenida El Dorado due to construction. But work sites are without workers because funds disappeared in a scandal involving allegations of municipal corruption. Hopes hang on a new metro/subway system, already almost two decades behind the shining, rapid metro in Medellin, with its aerial gondola extension lines.
To make things worse, this week truckers jammed traffic everywhere striking for higher trucking fees. Vice President Angelino Garzón, himself a former labor leader chosen by President Santos for a national unity government dedicated to improved labor and employment conditions, was unable after days to broker a settlement, but the week ended with a deal to end to the truckers strike.
That brought good news to the economy that had mixed messages on trade. A deal to release about half of the delayed payments from Venezuela to Colombian exporters will give a US$365M boost to the Colombian economy. But exports to the US once again became subject to tariffs, when Congress allowed the Andean Trade Preferences Act to lapse the day before Valentine’s Day, when 80% of cut flowers sold in the US come from Colombia. Angry that Republicans allowed the Trade Adjustment Assistance Program to expire, Congressional Democrats refused to extend the Andean Trade Preferences, that allow Colombian exports into the US with tariffs just as if the US-Colombian Trade Promotion Agreement had been passed. The Congressional squabble embarassed the US and angered frustrated Colombians who are making plenty of other trade deals. The Administration and Congress, however, began making a show of getting back on track and I maintain my judgment that the Trade Promotion Agreement will go to Congress by mid-year and pass.
Vice President Garzón, freshly back from a week in Washington to help win passage of the US-Colombia Trade Promotion Agreement, hosted a three ambassador visit from Washington designed to get “fresh information” and to speed up negotiations. The talks are trying demonstrate that the Administration responded to American hesitation over persistent problems with impunity in the killing of labor and human rights leaders. The three visitors will see real dedication to change, not only in increased prosecutions and decreased killings but also in restoring land titles to people displaced by paramilitaries or guerillas – with US aid. Also this week, President Santos formally presented the Law of First of Employment, designed to increase formal employment. (See my post about the new law. It includes, somewhat strangely, needed reforms to the nation’s bankruptcy law.)
On Capitol Hill, there blame game was on. There were two Congressional hearings in Congress relating to the TPA, where Assistant Secretary for Western Hemisphere Affairs Arturo Valenzuela, at one point mentioning that the Colombian Ambassador was seated near him, tried to convince skeptical legislators of both houses that the Administration is serious about submitting the TPA for a vote this year. He also denied that Obama is snubbing Colombia on his Latin America trip this March, since the Summit of the Americas next year is scheduled for Colombia. (That nugget was golden news, but somehow didn’t find its way into any news story I saw.) Treasury Secretary Geithner robustly called for TPA passage this year to help the economy recover through exports. The State Department spokesman reiterated that increased US engagement on the TPA is designed to get it to Congress by mid-year. That will come after March meetings of the US-Colombia High-Level Partnership dialogue in March. (See my post “Why The Colombian Trade Agreement Will Go to Congress This Year.”) Even President Obama got into the trade show game, making a point of attending a meeting of a trade negotiation advisory committee this week (a committee that has never met before during this Administration).
Why so much attention? Because Colombians – especially exporters – feel slighted by the constant foot-dragging in Washington on trade and the resumption of tariffs on their flowers and other exports. At the beginning of the week, Luis Carlos Villegas, the head of the National Industrialists Association said , if there is going to be a further renegotiation of the TPA, “don’t count on me.” Ambassador Gabriel Silva told reporters the Colombians were losing patience and were looking to other markets. (See my June 15, 2010 post: “Canada’s New Trade Agreement Turns Up the Heat on the U.S.”) Shortly afterward, President Santos gave an interview in the leading news magazine Semana, echoing Ambassador Silva, that if the TPA does not pass the Congress this year, the Colombians will not insist on it and will look to other markets.
In an interview with the Financial Times, Santos cleverly drew attention to near-final negotiations with Chinese backers of a new rail system designed to bring coal from near the Caribbean coast to the Pacific coast for Chinese freighters. Bringing up China, the futuristic vision of a railway “dry canal” alternative to the Panama Canal, was smart politics in this context. China has risen from the twelfth to the second trading partner with Colombia just in the time since the TPA was signed. As the Americas’ Society explained this week, Colombia looks to China rather than the US for infrastructure investment. In addition to rails, hydro and energy projects see Chinese backing, which helps compensate for Colombia’s increasing loss of textile business to China.
Reaction to the China card on Capitol Hill was swift. Proponents of the TPA frequently mentioned China during hearings this week. President Santos repeated Henry Kissinger’s famous quip that being America’s enemy is bad, but being its friend is fatal, but all signs point now to seeing the TPA concluded this year.
Not just the Chinese have their eyes on Colombia – three billionaires made news this week because they are investing in Colombia. Brazil’s Eike Battista bought Ventana Gold for $US1.43Bn. Carlos Slim was reported to be investing in oilfield services in Colombia as news broke that oil production was up another 13% in January year-over-year. And Sam Zell’s Equity International was said to be readying a big move on Colombia. Delta Airlines is paying attention, too, adding a daily non-stop from JFK to Bogotá.
From Billionaires to Millionaires – the Milionarios: football team (sorry, “soccer”) has its own rags to riches recovery story to match its Colombia’s. The “Blue Commandos” of the El Campín Stadium in central Bogotá were, at one time, famed for rolling out a huge portrait of a narco-partner of Pablo Escobar. The team’s dubious finances resulted in forfeiture and the team became a ward of the national anti-narcotics directorate. But all that is behind them now, because this week the Financial Superintendency approved the Milionarios to be listed on the BVC stock exchange (soon to be the MILA when it completes its merger with the Peruvian and Chilean exchanges). The action offers cheering fans the chance to become one of the team’s 3000 new shareholders. Just in time: this week, the Council of State ruled against sole-shareholder entities. Billionaires beware!
