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Preventing Piracy or Creativity? The “Ley Lleras” Translated – Colombia’s Version of the Digital Millennium Copyright Act

April 25, 2011

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

 

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7 Comments leave one →
  1. Xpectro permalink
    April 26, 2011 7:50 am

    Hunter, with all due respect, the problem goes deeper than just “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.”.

    As you know, Colombia is a developing country and many content companies here provide access to foreign goods. There is not a bigger national product than external. So, in many cases, the complaints and orders are going to come from employees that don’t consider directly the author’s but the companies interests. And, that would be a high risk.

    There is a fair way to access and use cultural material, as many examples around the globe can testify. This proposed law has a several flaw in not providing any kind of limits or guidelines to the way users could be protected. It only specifies “lucro”, that many of us wish that only leads to processes where money is exchanged for the copyrighted content.

    What the fight right now is about, more than free software against propietary ideas (as others, including the government have wrongly pointed), is how an ISP is going to let users express their free speech, their right to innovate (remix, mashup, cut up) against companies that try to protect more than anything their investment.

    Piracy should be treated as a market problem, and actions as opening content stores should go, if not first, at the same time a policy like this is proposed. The industry should take an active role in provideing solutions. They have more ways to do it: pricing, distribution models, availability, worldwide release… It relates to music, movies, books, TV… you name it. There are examples (“competing with free” is possible by treating piracy like a business problem.” http://flpbd.it/Bfqg “).

    I’m a personal supporter of copyright, of propietary ideas as much as I am of free ideas and sharing knowledge. In order to have a better society, as many developed countries have, you must educate before imposing policies. I live in a country where security has been improved by more armed guards in the streets, not by lowering the problems that generate many of the frictions that lead to violence. I do fear that an act like this law gives tools to people to close paths, to censure, to use power to stiffle (cultural and technical) innovation, from the rightly grounds of protecting intellectual property.

    In Colombia, a law like this one should limit clearly and show exceptions. There are many, and they are necessary.

    As a creator, educator, developer and consumer, I would like to see options before sanctions. I do enjoy in my iPad a lot of content I have paid for, as many of us do. Colombians want to pay. But, it’s very hard when, based on fear, there is no real competition from content providers for this pirates. There is no easy way for consumers to get their goods in a XXI century way. Variety, timely delivery, fair prices, language options… there are so many factors… Users here, in many ways, are not “third world”… they have seen the other side, so they expect to be treated in a similar way.

    I do hope this talk around LeyLleras makes our local industries more open to digital ways. Not the opposite. There are risks with innovation, and there has been years to test new models, so fear should give space to action.

    My 0.2 cents… from a very cold Bogotá. 😉

    • April 26, 2011 4:01 pm

      To XPectro (Pablo Arrieta, Internet guru!)

      Please stay warm and dry if you can in Bogota. La Nina is going to end!

      Thanks for your observations and response. I have drafted an article to be published soon by the Latin America Law & Business Report that will address some of your thoughts.

      For now, let me offer these responses:

      1. I posted the text of the Lleras Law to encourage a discussion of the actual provisions and language. This comment is directed generally at the rights provided by copyright laws. That is an important debate. But the Lleras Law does not change the rights provided by copyright law. In fact, Article 2 of the Lleras Law provides it does not change copyright law: “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.”

      The Lleras Law does increase the punishment for copyright infringement — it creates a criminal sanction for online piracy in Article 17 to 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,” by one “who sells or offers reproductions of them in digital format via the networks mentioned.”

      2. Regarding the point that “in many cases, the complaints and orders are going to come from employees that don’t consider directly the author’s but the companies interests,” the right of an author to sell her copyrights to a publisher, or of a corporation to have the rights of an author, is not changed at all by the Lleras Law.

      3. The Lleras Law will undoubtedly make it more difficult to use rights-protected material through ISP’s, in fact that is its design and purpose. In other words, you are correct that “What the fight right now is about, more than free software against proprietary ideas (as others, including the government have wrongly pointed), is how an ISP is going to let users express their free speech, their right to innovate (remix, mashup, cut up) against companies that try to protect more than anything their investment.” Here is how that actually will work.

      Online service providers “let” their users do anything they want, because the online service providers have no duty to monitor use. However, online service providers have to “take down” allegedly infringing use when a proper notice is served. It will only work, therefore, where the rights owners have taken the considerable time to discover the infringing use and serve a particularized “take-down” notice. Therefore, in reality, a lot of infringing use is probably going to slip under the radar because the burden on rights owners is too high to catch it all.

      4. Another point you make that is true is “it’s very hard when, based on fear, there is no real competition from content providers for this pirates. There is no easy way for consumers to get their goods in a XXI century way. Variety, timely delivery, fair prices, language options… there are so many factors… Users here, in many ways, are not “third world”… they have seen the other side, so they expect to be treated in a similar way.” But the goal of the Lleras Law – a FIRST in the region — is to attract rights owners into the Colombian market by promising respect for their rights.

      Without digital security, rights owners will avoid an economy with virtual impunity for piracy. Why shouldn’t they? What kind of society Colombia wants is being defined right now, and I am very impressed by an attitude gaining widespread acceptance in the country that is firmly opposed to impunity.

      It is also true that Internent guru’s and futurists — like yourself — have a vital role to play in creating marketplaces that respond to evolving demands and uses. Getting the security for rights owners is a start, not a finish, to that process. Like the security that has spread across much of Colombia, opening up the economy, creating jobs and reducing unemployment, reducing poverty, security is necessary but insufficient to achieve these goals.

  2. April 26, 2011 9:37 pm

    Readers: I have learned that “XPectro” is Pablo Arrieta, who was interviewed in Semana on this bill. Read the full interview here (in Spanish): http://www.semana.com/cultura/ley-lleras-sobre-mesa/155443-3.aspx.

  3. April 28, 2011 6:38 am

    Hi there Hunter,

    Here I am again, after a busy couple days at events and #leylleras related talks.

    I would like to add that my name is Pablo Francisco Arrieta and I’m a university professor here in Colombia, in both Javeriana University (Social Communication Faculty) and Los Andes (Architecture and Design Faculty). I’ve been a consultant for Macromedia, Adobe and Apple. I also do work very closely with the publishing world by thinking and showing succesful ways to change from a paper bussiness to a digital one.

    My concerns with creativity and digital media have been around since my begginings in this universe (started working as web creator back in 1995), and as proof of that, I’d like to share with you and your readers my first long article on the subject, published in 2003 and in which I introduce Creative Commons to Colombian audiences, by the hand of Lawrence Lessig himself. In this piece I talk with several authors and artists around the subject of creation, business oportunities and law. Amazingly, although things have changed all over the world, they are pretty the same in latin countries. And this was written pre iPod! ;-(

    http://xpectro.posterous.com/pasado-desconectado-futuro-enredado

    So, more than web guru, I’m a creator, user, professor, living and working in Colombia, travelling all over the world sharing ideas from this perspective and I do fear laws like this based on the possible harm they allow to do by people that don’t use correctly the powerful resource that the web (that we all have built in so many years) gives to developing nations like mine.

    I hope for the best, but I’ve seen many times wrong results… and it’s really sad.

  4. April 28, 2011 5:22 pm

    Keep fighting the good fight Pablo as you raise important questions about copyrights in the digital age.

    Even you are not in favor of totally ending copyrights. What
    Ever is protected must be protected in digital form too.

    Ley Lleras just protects in the digital space whatever is protected by copyright.

    This is why I challenge opponents of Ley Lleras to point to articles in the bill when making their arguments. They can’t because the problems they – you – have are in a different place. The copyright law.

    You of all people should see the benefit to punishing piracy so that rights owners enter the market, even while you insist that their rights recognized by law should be changed. Otherwise the only alternative is a culture of disregard for the law and Colombia has has too much of that.

    Big hugs!

  5. March 22, 2013 4:28 pm

    I always refer to this blog when looking for inspiration on
    my Argentinian law blogging startup. The situation between these
    two countries (Colombia and Argentina) is very similar regarding
    the subject of this article. Thanks for sharing, keep up the good
    work!

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