On April 13, 2012, the President of Colombia Juan Manuel Santos signed Law 1520 –known among the media and social networks as ‘Lleras Law 2.0’–, whose main objective was to increase the legal protection against copyright infringement. Last January, but just recently available, the Constitutional Court overturned it arguing procedural irregularities, leaving behind any analysis regarding its content.

Carlos Cortés Castillo, lawyer.

Law 1520 implemented some of the intellectual property provisions of the Free Trade Agreement (FTA) signed between Colombia and the United States. In general terms, Law 1520 raised the protection threshold for copyright infringement, both in general terms and specifically for the Internet –on issues such as Digital Rights Management and Anti-Circumvention provisions.

Senator Jorge Enrique Robledo (prominent member of the left-wing Polo Democrático Party) challenged the law claiming two procedural issues: On the one hand, as the First Commission of both the Senate and the House are in charge of intellectual property issues and related rights, they should have approved the law instead of the Second Commission of each chamber. On the other hand, taking into account that the law affected the right to freedom of expression, it had to be passed as a Statutory Law.

Several offices of the Government, the Ombudsman Office and several private groups defended the constitutional grounds of the law. Most of them argued that the Second Commissions in Congress are in charge of bills related to international commerce and treaties, among others. Hence, as Law 1520 was basically implementing international obligations under the FTA, the procedural requirement was properly followed.

In addition, the defenders of Law 1520 said that the constitutional precedent pointed towards a flexible interpretation of the commissions’ competences, as bills usually include several topics that fall under different commissions. Although Law 1520 did address intellectual property issues –they said–, it certainly developed international commerce affairs.

By means of ruling C-011 de 2013, the Constitutional Court acknowledged the flexibility criteria, but dismissed such argument in this case. According to the Court, there is a difference between the topic of a Law, which determines the commission’s competence, and the source or framework of the obligations that develops. Beyond the FTA, Law 1520 is an intellectual property regulation:

“At this point it is worth emphasizing that what has been subject to the constitutional control of this Corporation is the internal regulation regarding the economic rights of the authors, pursuant to the commitments acquired by the Colombian state under the Trade Promotion Agreement with the United States, having the law under examination no connection with trade relations between the two States, neither it relates in any way to the international scope” (informal translation).

Having determined this procedural fault, the Court declared Law 1520 unconstitutional and refrained itself from any further analysis. While it was foreseeable to avoid any content judgment once the procedural challenges succeeded, the Court could have said something regarding the nature of Law 1520. That is, if it was necessary to pass the bill under the statutory proceeding.

Last year, President Santos had summoned Congress to pass the bill under urgency conditions –triggering a shorter legislative process–, to have it ready for Barack Obama’s visit to the Summit of the Americas, which took place in Cartagena on April of 2012.

This political gesture prevented an adequate discussion in Congress and within civil society. Back then, a group of international intellectual property academics and experts sent a letter to the presidents of both the Senate and the House expressing their concern for the bill: “We find that many of the changes that upgrade protection for copyright go beyond what the FTA requires and are, in fact, more restrictive than U.S. law itself”.

In similar terms civil groups like the Foundation For Press Freedom, Karisma Foundation and the Center for Freedom of Expression Studies of Palermo University in Argentina, addressed before the Court different issues regarding the balance between freedom of expression and copyright enforcement in Law 1520.

The Court did not solve such issues, which will be back in the public agenda in the coming weeks. Last May, the Ministry of Foreign Trade filed –as an ordinary law– Bill 306 which, in general terms, is the same Law 1520. Apparently, the government took in some of the criticisms and did not request an urgency process. However, we will have to see if they will allow the bill be debated among civil society.

Carlos Cortés Castillo, abogado.
Twitter: @CCortesC