Colombia, chronicle of a Social Controversy Foretold
Translated by Carolina Mejía
Original in spanish By Carolina Botero
Following the trend of other laws currently being enforced by other countries attempting to regulate ISP’s responsibility for copyright infractions made through the internet (known as Hadopi Law, Sinde Law, “Notice and take Down laws”, “Notice and Notice laws”, etc.), the Colombian government filed in Congress, at the beginning of April, the local version of such laws, identified as Bill No. 241 “By which responsibility for infractions against copyright and related rights is regulated”, which attempts to comply with the FTA’s signed by the country and persecute online piracy through this mechanism.
The Bill was filed by the Interior Minister Germán Vargas Lleras (from whose second last name the hashtag #LeyLleras was created by Twitter users, due to its political significance derived from the Minister’s grandfather, ex-president Carlos Lleras) without a previous scrutiny and consultation with civil sectors, which would have helped its consensus, as has been done in other countries. The Bill is based on the legitimate interest of copyright owners to protect their works, but as we mentioned earlier, it also seeks to comply with the FTA that was signed with the United States in 2006.
Several national artists accompanied the Minister to file the bill, which resulted in great media hype around the beginning of the hunt for pirates. The tone of this discourse and what had already happened in other countries made it easy to predict what would happen: in a matter of days, social networks exploded and turned the subject into news; internet users, youngsters, and everyone who felt tagged and criminalized were alarmed and surprised by the fact that the State did not even see what is now a matter of common sense on the web: that technology is now for copying, that sharing is the rule and that not every single use can be deemed as an infraction.
The Government did not measure the repercussion of its discourse in the midst of a society that, because of the extension of internet access, now has different social practices and demands equilibrium between rights, which is not so common in the world of atoms; and did not take into account that the Bill is essentially directed to a population segment that masters new forms of social mobilization, since it’s centered in the protection of copyright. What this did, was to attract never before seen attention to a Bill that is far from being the one could have more social impact in our country and that it did not cool off with the belated offers to comment the text in static websites.
What was the Government’s original proposal?
The original Bill follows the structure of the terms used in FTA’s signed in Latin America, but it goes well beyond its requests. The text primarily envisaged liability exclusion for ISP’s who cooperated with copyright holders by adopting a private procedure of “notice and take down” mixed with a subsequent judicial control; with the adoption of contractual measures and the judicial sanction to cancel the service (hosting or routing) to “repeating offenders”; with the handing over of personal information of the alleged offender by the ISP in order to identify him; and the broadening of the existing criminal figure in order to emphasize the punishment for those who upload protected content and derive profit from it. It also included a few articles specifying the procedures and the considerations the judge should take into account regarding these matters.
The Bill was praised as a necessary measure in order to guarantee the survival of creative industries and was criticized by other sectors because, although we can recognize the legitimacy of copyright protection, we consider that a Bill such as this represents a risk to the fundamental rights of internet users. It is also perceived as an overreaction to an environment where internet penetration is still scarce and the ghost of piracy is still, essentially, an analog problem.
How did this become a media issue?
The users’ reaction, using social networks and its dynamics, was to create groups and generate platforms that promoted criticism to what they considered a sudden and unilateral Government project. One of these platforms is RedPaTodos, which groups people around the idea of free culture, and of which I am an active member. Other initiatives have been created with similar objectives, such as vindicating co-creation (Recrea), and some others seek to directly attack the initiative because they deem it illegitimate (Anonymous). These attacks, that copy and make use of international infrastructure of sympathizing networks, are now another challenge for the Government and its outcome is very hard to predict, since when it comes to violent acts in Colombia, the people involved are quickly polarized and each side stops looking beyond the offense.
In relation to the arguments of the debate, from the criticism of the original Bill one can highlight the dismissal of the judge’s role as guarantor of fundamental rights in a State governed by rule of law when limits to such rights are being discussed. It was then denounced that the Bill proposes a private pretrial “notice and take down” procedure, in which the possibility of accessing content is taken from the users by an ISP. It includes a subsequent judicial control, but this doesn’t hide how the presumption of innocence is modified or how due process and freedom of expression are put to danger. This also generates excessive charges for the “alleged offenders” with regards to the procedure (72 hours for the ISP to cancel access and a “reasonable period of time” for it to consider restoring access, pending a court order) and contractual clauses that are suggested to the ISP’s.
There were also objections regarding privacy rights, since the reach of ISP’s obligation to hand over information of the alleged offender was not clear: although there was a court order involved, the Bill did not clarify to whom or how this information would be given. There were also comments on the risks regarding data security, since the Bill proposes account cancellation for the “repeating offender”, the inclusion of contract termination clauses by the ISP’s and the fact that the judge can impose this sanction. All of this entails the conservation of data, which makes one wonder who will keep this data? For how long will he keep it? How will he preserve it? Etc.
But, how did Congress receive It?
The Bill started in Congress with the intention that it would become a law during 2011. Even though from civil movements we have insistently asked for broader and decentralized discussion and conference forums, the lack of political will of both the Government and Congress has been obvious.
We insist on the fact that that the subject was not only the content of the Bill, but the historical opportunity to build the text with internet users and for the internet. We were aware that this was a possible option for the Government, since it has had similar previous experiences, and that it would be difficult for Congress; but we supported Senator Romero’s proposal of a conference committee, although what was accomplished was a series of informative meetings with several speakers that were essentially conducted in order to ventilate concerns regarding the Bill. We verified that all of these meetings were transmitted by streaming (except the one that was held exclusively with industry members) and we have been overseeing what has been going on in them. The interest this subject has stirred on social networks, and the participation dynamics that have been used, which has translated in a relative media hype, have surprised both the legislators and the government who are used to social apathy when it comes to legislative procedures in Colombia. In order to show that this time would be different, we started circulating an open letter asking Congress to give the process transparency. This letter collected over 2300 signatures in the 30 hours previous to the Bill’s first debate.
What has happened in Congress?
Just days before the end of this period’s sessions, on June 14th, the group of speakers led by senator Roy Barreras presented the Bill to be discussed and voted at the Senate’s First Commission. The new text maintains, with little change, the structureof the original project. Some changes were made, among which it’s important to point out the definition of the ISP’s obligation to hand out confidential information when ordered by a judge: it is now restricted to the name and address of the alleged offender and it can only be given for the purposes of a judicial process. Also, an effort was made to balance the periods of time established for each action during the procedure described in the Bill. Nonetheless, we think that if a private pretrial procedure that gives the ISP’s the possibility to cancel internet access or to remove content from the internet through a “notice and take down” system is maintained, there will be risks to some fundamental rights of users, especially to freedom of expression.
We maintain the comments described earlier, which are now supported by the latest UN report that explains the risks of these regulations based on “notice and take down” mechanisms, and that also indicates how “denying the right to access the internet, as a sanction, is an extreme measure that could only be justified when there are no other less restrictive measures and provided that it was ordered by a judicial body”.
From the 17 senators that make up the first commission of the Senate, only 10 were present at the first debate. The voting resulted in 7 favorable votes and 3 negative votes. This result, which implies a defeat to our efforts to significantly affect the text of the Bill, shows the political intention of going through with the approval of the Bill; since if the text wasn’t approved on the first debate before June 20th, the procedure could not go on. However, all this leaves us with something to be optimistic about: the 3 senators who issued a negative vote have strong concerns regarding the Bill, even of a constitutional nature; 3 of the favorable votes were conditioned to a more detailed analysis of the text and to the demand that some changes be made to it; and, in any case, though senator Galán, one of the speakers, voted in favor, he offered to open an online space so as to receive the people’s sentiment regarding the Bill and the modification proposals during the recess in Congress sessions, which is scheduled to end on July 20th. Although I’m not sure that senator Galán understands the activity, since we are clearly not asking for a commentary blog, it’s a good re-start.
The million dollar question: What will happen with the controversial #LeyLleras?
The Congress has now finished one of the four debates that an ordinary law has to undergo in Colombia. What is expected is that the Bill will pass the next three during the second part of this year and what we expect is that the social movement is able to inform and pressure the Congressmen enough, so that they analyze the thorny problems the Bill presents and substantially modify the actual text in order to avoid unconstitutionality lawsuits before the Constitutional Court and the Inter-American Court of Human Rights.
We think the balance between user rights and the rights of copyright holders should be explored, so as to comply with the FTA in accordance with the legal tradition and regulations of our country, as the Constitutional Court indicated when it approved the treaty with the United States; thus, we are optimistic in our belief that, though the procedure will be done apparently in a rush (the approval of a Bill such as this usually takes about two years), we will be able to prove the need to adjust the Bill taking into account that the Internet is a delicate ecosystem that can’t simply be considered as a means of distributing protected contents.
A well balanced law is especially important to oxygenate educational and cultural activities on the web, but also to think about new business models in which the idea of “open business” is connected with the one according to which enterprises have to yield to the tendency of making the most from the control given by intellectual property in order to promote innovative processes and to take advantage of them, given the characteristics of new technologies. Thus Chesborough said in his when he analyzed the new technological environment and its abilities in light of innovation and he says that this “business model demands that not all ideas are protected in order to create an added value for consumers and collaborators”.
The law that is being created in Colombia will probably be the second of its kind to be approved in the region after the Chilean law, remembering the failure of the Mexican law and leading in front of the Argentinian and Peruvian Laws. Acknowledging the dominion of Congress held by the Colombian Government, we know it can pull the law through in the line it wants it if that is its political decision, and we think the risk that it will be taken as a model law for the rest of South American Countries can materialize. This is because due to the obligations set forth by FTA’s with the United States, the region considers these do not allow the creation of laws such as the Chilean one (this country’s FTA with the USA is more relaxed in some regards, due to it being the first one to be signed in the region), because they include specific references to private procedures and therefore, even though the Chilean law was praised by the UN in the afore mentioned report and the fact that we believe it to be a more protectionist solution, it will surely not be the role model for other laws and we ask ourselves if it will be “one of a kind”.
Now, we agree with professor Lorenzo Villegas when he says that, in any case, the terms of the Colombian FTA with the United States don’t force Colombia to establish a private procedure that includes access or account cancellation or even the removal of content from websites. The consequence cannot be to impose foreign legal traditions or procedures that are contrary to Colombian laws, as the Constitutional Court said, we can also remember how the French Hadopi law was also deemed unconstitutional at first.
We believe the UN report should be an important standard in the search of balance in a media that is full of potential such as the Internet, which regulation means an important responsibility for the societies that are tackling with it. We think that we should abandon the use of some laws as role models (DMCA, Hadopi, Sinde) because we believe, as the UN does, that they endanger freedom of expression and that we could analyze regulations that are more in accordance with a State that is respectful of human rights in general, such as the laws of Chile, Canada and Australia. There are many ways to comply with the FTA, but not all of them adjust to our legal traditions or to our Constitution’s guidelines.