Access to knowledge was the topic that Karisma Foundation presented during the thematic hearing before the Inter-American Commission on Human Rights (IACHR) on the impact of Internet on defense and exercise of human rights. The hearing was held in Washington, during the 153rd Session, on October 28, 2014.

Por Carolina Botero*

Access to knowledge, as a human right closely linked to freedom of expression, is a complex and broad topic. However, the focus of the presentation was about the tension intensified with the popularization of Internet between the legal copyright system and the right of Latin American societies to access to knowledge and information for ensuring social development.

This tension is explained by the potential Information and Communication Technologies (ICTs), especially Internet, to access. In addition, ICTs reduce costs for creation, production and distribution of content and provide a decentralized infrastructure where all interact with that content.
This ability is definitely positive but has also been seen as a threat to legal circulation model of content offered by law copyright.

Under a human rights approach, this tension is manifested by at least in 3 topics:

1. Pressures to States to implement highly disproportionate copyright protection laws This happens with FTAs that seek to transfer to the local context standards that have even been highly questioned in their home countries.

This is the case of the “Saga of the Lleras Law” in Colombia. Lleras Law is known as a number of legislative proposals that were motivated by the FTA with the US. Their common denominator is the pressure the country of the north exerts on the Colombian government to fulfill the commitments made in the Treaty. The first proposal, submitted in 2011, sought to impose a liability exclusion mechanism for Internet intermediaries, known in the US as “notice and takedown,” (a mechanism that YouTube users know well, because serves to block videos upon the request of rightholders). The system in question is a non-judicial content blocking process, in which private intermediaries decide on what should be or not online.

Similar processes have been discussed in Mexico, Argentina and Peru, but only in Chile there is progress with a protective judicial model. In any case, FTA pressures in our countries assure that the issue will been further discussed until we comply. However, with a much more aggressive approach, the Trans-Pacific Partnership (TPP) is been secretly discussed, with no civil society participation, and with five countries of America involved (Canada, the United States, Mexico, Peru, and Chile). According to text leaks known, the TPP is a new-generation trade
agreement that is even more aggressive and once approved it will be imposed as a “take it or leave it” to other countries.

2. Use of criminal law not as the last resort but as a deterrent tool for copyright protection In recent years, criminal laws in the region have been reformed to extend penalties for infringements of copyright. In addition, copyright enforcement is focused on emphasizing the deterrent function of criminal law, leaving aside that this system should be used only as a last resort. In other words, on criminal matters, it has been searched “scapegoats.”

This can be exemplified in two cases: The case of professor of philosophy Horacio Potel (Argentina), who designed and published a free translations site of works by three philosophers (Nietzsche, Derrida and Heidegger) in order to provide to his students access to these authors, circulating in expensive books and in languages other than Spanish. The Derrida’s publisher denounced his unauthorized digital library. The criminal process included seizures and other judicial measures. A prosecutor eventually concluded there was no crime because there was no criminal intent; therefore, the case was closed. The case of Diego Gómez (Colombia), a biology student that found in a closed Facebook group a master’s thesis on taxonomy, is pending. In order to facilitate the access to that document to other students and without any profit aim, he posted it in an Internet platform. Since he learned that the colleague author initiated a criminal proceeding against him, almost two years have elapsed. Although it is expected that the case, as it happened with Horacio Potel, be rejected at some point because his action had no profit purpose or the intent to harm, the fact is that in Colombia infringement of copyright could mean to Diego up to eight years in prison and heavy fines.

As we see, criminal law has been designed to combat piracy, however, it is been used inappropriately. That is, international standard establishes that infringement of author’s economic right assumes the intent to harm, on a profit basis and commercial scale. When its enforcement is extended, the legitimacy of the pressure is distorted and, as result, it becomes disproportionate.

3. The abuse of copyright laws The tension between copyright and human rights is particularly evident in the case of people with visual (and other) disabilities, who have spent decades demanding equal access to knowledge, information and culture. This population has shown
they have access to only 2% of intellectual production (in Colombia, it is 1 by every 1000 books). Digital technologies offer an effective way to transform books into accessible formats (e.g. by using software that make books audible), but for this to work, national legislation must ensure the access vis-à-vis the monopoly of copyright.

Some countries in Latin America (Chile, Ecuador, Colombia) have taken steps, but the real change will come when the Marrakesh Treaty is implemented. The Marrakesh Treaty, carried out within the UN World Intellectual Property Organization, is an important change as it is the first time the international community discusses a binding instrument, not for increasing copyright protection standards, but for ensuring that they do not interfere with fundamental rights of persons, in this case, with disabilities to access the printed text (the negotiation lasted years and closed in 2013).

To date, 16 countries in the region have signed it, but only El Salvador, Uruguay and Paraguay have ratified it. Before being a real movement towards the effective adoption of the Treaty, we see that in Colombia, for instance, there have been three lawsuits challenging the constitutionality of an existing law (1680 Act of 2013, which provides for minor provisions for this access, when it is compared to the treaty) in the last four months. The plaintiffs allege that the law violates copyright,posing arguments that ignore the rights of these communities and provisions of the law itself seeking to balance different protections.

Therefore, we expect that this debate on the Marrakech Treaty, much broader in its scope, will face a strong resistance.hese are just some of the examples offered in the Annex, which demonstrate the need to work on a human rights perspective in the region to facilitate access to knowledge and information.

*The hearing was requested by six organizations from Latin America that work on issues of human rights in the digital environment, the Center for Studies on Freedom of Expression and Access to Information (Argentina), Karisma Foundation (Colombia) , NGO Derechos Digitales (Chile ), the Association for Progressive Communications, Center for Technology and Society at the Getulio Vargas Foundation (Brazil) and the Association for Civil Rights (Argentina).

**Carolina Botero director of the group “Law, Internet and Society” from Karisma Foundation.
E-mail: carobotero (at) gmail.com

Translated by, Amalia Toledo. Karisma Foundation.