Exceptions and limitations to copyright for libraries and archives in Colombia: update & upgrade more than necessary

by Digital Rights LAC on July 11, 2013

Luisa Fernandez Guzman

As part of the sagas of laws that seek to modify the copyright system in Colombia, ignoring the need to fully review and update the exceptions and limitations, it is premiering in Congress the law proposal 306 of 2013 (Ley Lleras 4). Libraries, archives and civil society will present their concrete proposals on round tables. What will happen?

Por Luisa Fernanda Guzmán Mejía, Karisma Foundation.

On May 15, the Minister of Commerce, Industry and Tourism and the Minister of the Interior of Colombia filed in the House of Representatives the law proposal 306 of 2013 –known by netizens as Lleras Law 4–, in a new attempt to implement some of Colombia commitments on intellectual property under the Free Trade Agreement with the United States after the Constitutional Court declared unconstitutional the law proposal 1520 of 2012 (Lleras Law 2) due to procedural defects in January.

Despite the comments made at the time by civil society, the new project is virtually identical to the Lleras Law 2. Additionally, it suffers from the same faults: rises the protection of copyrights without introducing appropriate mechanisms to balance the system, which could be achieved by revising and updating existing exceptions and limitations that are already outdated in the face of new realities 2.0.

Unlike previous episodes in the saga of laws and in response to a request by the collective RedPaTodos, this time the Colombian government has committed itself to discuss the law proposal 306 with civil society. As a result, round tables will be organized shortly. Libraries and archives, committed to their important role of providing access to culture, education and information, will submit a proposal on exceptions and limitations to copyright, enabling them to fulfill their aims with full legal certainty, in these new technological contexts.

Panorama of copyright, libraries and archives in Colombia…

The only exception and limitation available to libraries and archives in the Colombian legal framework on copyright is the reproduction of a work for preservation intentions. Article 38 of Law 23 of 1982 provides this possibility only to public libraries and when required for conservation purposes; on the other hand, the Andean Decision 351 of the Andean Community of Nations, in its Article 22, enables libraries and archives to reproduce an original works in the event of loss, destruction or irreparable damage without profit-making purposes. This decision, whose character is preeminent or of preferential application over domestic law, establishes an exception and limitation much broader than Law 23, since it is not restricted only to public libraries and it includes also archives.

In this regards, the National Copyright Office (hereinafter DNDA, in Spanish) has ratified that under the Decision 351 the protection for libraries and archives is not possible for different use than reproduction, as for example the distribution of copies (Concept 2-2006-9790 of September 29, 2006). This is a legal obstacle for lending of copies by libraries and archives. In turn, it prevents the acquisition of works in other countries as both the lending and the import are forms of exclusive distribution right, according to Article 3 of Decision 351, and, therefore, require the express prior authorization of right-holders.

This authorization is necessary because Colombia has not exercised the power established on 1996 WIPO Copyright Treaty to determine the conditions under which the distribution right is exhausted. That is, even though the first sale of a work’s copy has been made in the country, the authors or right-holder retain the prerogative to control how the work is still being distributed. In Colombia, the distribution right is not exhausted (DNDA Concept 2-2005-6647 of July 14, 2005).

The Law 1379 of 2010 established that, due to its educational nature, libraries are not required to seek right-holder authorization when lend books and materials, and make them available to their users, “in cases expressly falling by the rules governing the limitations and exceptions to copyright and related rights”. Paradoxically, this provision does not allow public lending without the required authorization, because as it was evidenced before, there is no express limitation and exception on distribution right. In turn, the law only applies to the National Network of Public Libraries, which articulates and integrates state public libraries and their services in the various territorial units.

If in the world of atoms rains, it pours in the digital…

The above scenario shows how the copyright rules restrict library and archive activities in Colombia. However, the situation could be more daunting. The new law proposal 306 provides that, regardless of a subsequent infringement of copyright or related rights, whoever circumvents without authorization effective technological protection measure (TPM), laid down to control access to or unauthorized use of work, shall incur civil liability and shall indemnify damages. While this proposal provides an exception on access to a work by non-profit libraries, archives or educational institutions, which would not have access otherwise, for the sole purpose of making acquisition decisions, this is clearly insufficient. The protection to these measures prevents circumvention for lawful acts under the existing limitations and exceptions as reproduction for preservation, and it could also affect the access to and use of works that are in public domain and that incorporated these measures at some time. Additionally, it would not be allowed to disable such measures to facilitate access to works by persons with disabilities, necessary for the functioning of e-Braille and text-to-speech devices.

Meanwhile at WIPO…

Since 2010, treaty proposals on limitations and exceptions for libraries and archives are been prepared at WIPO, which include the possibility of parallel imports, lending services to users and others libraries, making copies in accessible formats for use by disabled persons, the use of orphan works, obligations concerning TPM, among others. The WIPO Standing Committee on Copyright and Related Rights, in its meeting to be held from July 29 to August 2, will resume the dialogue on this important subject, suspended while the newly approved “Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled” was adopted.

Colombia signed the treaty on June 20, pending the ratification process before Congress and subsequent internal implementation. Of this will depend that libraries and archives can convert works into accessible formats, and, ultimately, facilitate access to education, culture and information to people with disabilities.

Luisa Fernanda Guzmán Mejía, Karisma Foundation
Twitter: @lfdagm