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

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