PIJIP Research Paper no. 2013-02
Authors: Glushko-Samuelson Intellectual Property Clinic in Collaboration with Andrés Izquierdo and Fundación Karisma. American University, Washington College of Law
Introduction: In January 2013, the Colombian Constitutional Court struck down on procedural grounds the controversial copyright law known as Ley Lleras 2.0, which presented Colombia with a tremendous new opportunity to draft balanced copyright legislation that meets the needs of its citizens.
Ley Lleras 2.0 developed out of Colombia’s attempts to foster more positive relationships with other democratic nations worldwide. To further strengthen ties between Colombia and the United States, these two countries entered into a Free Trade Agreement (FTA) in 2006. This FTA emphasized market access for agricultural products and removed barriers between Colombia and its largest trading partner, which made selling goods more profitable and assisted the Colombia’s continued development.
The Colombia-U.S. FTA included flexible language that gave Colombia wide discretion to create laws implementing the FTA in ways that best serve Colombians’ needs. However, when the Colombian legislature attempted to pass two controversial and restrictive laws, it failed to take advantage of the flexibility afforded by the FTA in a way that maximized the benefits for all Colombians.
The FTA required Colombia to provide creators of copyrighted works with control over their works in a way that was consistent with international intellectual property regimes; however, the agreement did not provide exceptions for incidental copies, educational use, satire, or commentary. Because the Colombian legislature’s initial attempt to implement the FTA only maintained the base requirements set out in the agreement, it did not take advantage of the flexibility available in implementing the agreement that would have better promoted the economic and constitutional rights of the Colombian people.
In the face of harsh resistance, the Colombian legislature attempted to pass sweeping legislation regarding Internet usage and copyright protections, which would have adversely affected all Colombians. The highly restrictive Internet Service Provider (ISP) bill of 2011, known as Ley Lleras, would have greatly increased potential ISP liability and forced service providers to police Colombian’s Internet use. When that bill failed to pass, the Legislature rushed through Ley Lleras 2.0 in April of 2012, which drastically altered existing copyright laws. Ley Lleras 2.0 imposed harsh penalties for violations, even unintentional ones, and the law failed to include any significant limitations or exceptions. Despite objections from Colombian civil society, the Legislature used questionable procedures to rush the passing of Ley Lleras 2.0 in an unheard of 18 days. This hurried and insulated tactic ultimately led to the law’s downfall in the Constitutional Court.
Colombian Civil Society, members of the Colombian legislature, legal scholars, and international treaties and conventions all call for a more balanced application of the provisions in the FTA. Now, in the aftermath of the Colombian Court’s decision, the Colombian legislature must draft new legislation that respects and protects the freedom of expression and privacy rights of all Colombians – not just the economic rights of a minority.