Important reform of Colombian IP Legislation
Colombia has overcome one of the last hurdles left for the entering into force of the Free Trade Agreement (FTA) with the United States of America with the adoption of Bill 201/12.
The referred bill, popularly nicknamed after the name of the Colombian Minister of Interior as “Ley Lleras 2.0”, deals with the exploitation of copyright in the digital environment and the role of Internet Service Providers (ISPs). The bill has been highly criticized not only for the allegedly limitations that it implies for civil liberties of Internet users, but also because of the speed with which it has been passed – its adoption only took two weeks. Such speedy procedure was due to the fact that the “VI Cumbre de las Americas” was right around the corner, and that some of the most influential Head of States of America were going to attend it, Mr. Barack Obama among others. Thus, the goal set by the Colombian government was to have it passed as quick as possible, so that it could be shown as a success during the summit.
Among other aspects, the “Ley Lleras 2.0” rules the liability of ISPs in a way which seems quite similar to the regulation provided by the US Digital Millennium Copyright Act. Particularly controversial is article 13 that prohibits the broadcast of TV signs via internet, whatever their nature is, without the due author´s consent. It also establishes the penalties the infringer will have to endure. Also, the public at large feels pretty unhappy regarding this new Law, as it makes the storage of copyrighted contents, punishable, even if it is temporary. We are looking forward to seeing how the Law will be applied, but the general feeling of the Colombians is that “third generation entertaining tools” such as “Dropbox” may make them copyright infringers, and therefore, endure severe fines.
As previously mentioned, the adoption of Bill 201/12 is one of the last hurdles for the entering into force of the FTA Colombia-US. Such agreement covers all areas of trade between both countries. In particular, chapter 16 refers to Intellectual property, including trademark registration, geographical indications, domain names, copyright, neighboring rights, and so on. Its purpose is to ensure that IPR of companies from not only the other contracting party companies but also from any other WTO Member State, are effectively protected in Colombia and the US.
With regards to trademark registration, it is surprising how the agreement permits registration of trademarks that are not visible, allowing registration of sound trademarks or even smell trademarks. We cannot forget the Spanish Trademark Law only allows registration of signs that can be represented, according to art. 4 LM 17/2001.
Regarding domain names and trademark piracy on the internet, it is equally surprising how the agreement establishes the country- code top- level administrators must set out means for solving potential controversies. This may be particularly relevant in cases of cybersquatting.
The “Ley Lleras 2.0” is not the only measure adopted by Colombia to adapt its legislation to international standards. Other measures include the Resolución 21447 de 11 de abril de 2012 (in Spanish) of the Superintendencia de Industria y Comercio del Ministerio de Comercio, Industria y Turismo that amends titles X and XI of the Circular Única from that Superintendencia. In the meanwhile the Colombian Supreme Court has declared the compatibility (in Spanish) of the Legislative Acts that declares the accession of Colombia to the Madrid Protocol.
If no contingencies occur, the FTA is expected to come into force in June this year, binding both countries in a long- standing relationship. In Salvador Ferrandis and Partners we believe that the entering into force of the agreement constitutes a departure from the old regime, but also a new opportunity for Colombia to regulate “grey aspects” of intellectual property, such as the registration of non-visible trademarks or the conflicts that arise when a trademark is used by a third party as part of a domain name. We shall remain expectant as to how the agreement will be applied by the courts.