Overview of Copyright and Neighboring Rights in Colombia

The copyright legislation in Colombia is  up to date with the legal international legal standards developed within the World Intellectual Property Organization, for most of the multilateral and regional agreements, such as the the TRIPS agreement, the WCT and WPPT.

1. Constitutional nature and normative sources

Article 61 of the Constitution establishes the State’s obligation to provide protection to intellectual property. This constitutional framework is developed by a comprehensive set of  laws for the protection of copyright in Colombia following the standards set in the Berne Convention. Colombia, through Law 48 of 1975, signed the Universal Copyright Convention and the Rome Convention of 1961. In 1982, Law 23 of that year developed internal regime the rights described in the conventions referred. During the following years, Colombia signed diverse treaties  and regional agreements on the subject, including Decision 351 of the Andean Community[1], the TRIPS agreement, the WCT and WPPT.

In the context of trade liberalization and undertaken by the country in recent years services, Colombia has acquired a series of bilateral obligations, which will involve a modification of the current system of protection of copyright and related rights; for example, Colombia has yet to regulate the liability of internet service providers in accordance with the provisions of the FTA between Colombia and the United States, as discussed later.

2. Protection

2.1. Authors of literary and scientific works.

Law 23 of 1982, consistent with the Berne Convention grants protection to authors and owners of moral and economic rights of literary, scientific and artistic works. As regulated in the continental tradition, Law 23, Decision 351 and the Berne Convention, the legislation gives protection to moral and economic rights.

Moral rights recognizes the paternity  of a work, the right to retain an unpublished or to disclose it and the right to oppose changes to the work that violate the honor or reputation of the author[2]. Decision 351 and Law 23 provides that these rights are inherent, inalienable and imprescriptible to the author. In terms of duration, Law 23 and Article 30 of Decision 351, tacitly, establishes that moral rights are perpetual.

Economic rights, according to Law 23 and Decision 351, gives the right holder the exclusive right to reproduce and prevent reproduction of a work, make a translation, adaptation, adjustment or modification of the work and communicate the work by any means.

In terms of duration, Decision 351 of the Andean Community states that the rights of natural persons have a duration corresponding to the life of the author plus 50 years after the author’s death; legal entities have economic rights in the work for a period not exceeding 50 years from the publication of the work. However, in Colombia Article 21 of Law 23 provides for natural persons protection during the author’s lifetime and 80 years after the author’s death or last co-author of the work; legal entities have economic rights in the work for a period of 30 years from the publication.

Economic rights include, among others, the following exceptions and limitations under Chapter III of Law 23 of 1982 and Chapter VII of Decision of 351 of the Andean Community.

  • Public libraries may reproduce a work for the exclusive use of its readers, with the aim of trying to preserve a piece for their collection
  • For private use without profit
  • Publication of portraits for scientific, educational, cultural, or if portraits had been taken at public events.
  • iii. Unauthorized use of photographs, public communications, speeches of deliberative assemblies or public nature court hearings as used for news purposes.
  • Using literary or artistic works for teaching purposes. The educational work must reference the name of the author and the work.
  • Quote an author, provided that the transcript is not used as a simulated playback. The quotation must reference the name of the author and the work.
  • Works permanently placed in the street may be reproduced. Although architectural exteriors are protected by copyright in Colombia.
  • Lectures or lessons can be copied in the context of a class by students to whom it is directed. However, it is not allowed to publish the notes without the author’s permission.
  • It is legal to copy and reproduce all the Laws and judicial decisions.

 

2.2. Related rights.

Law 23 of 1982, Decision 351 of 1993 and the WPPT gives performers, performers of artistic, scientific or literary works and phonogram producers, a series of exclusive rights called related rights, also called neighboring rights. These rights are the prohibition to broadcast, communicate to the public, fix the work, reproduce a work without authorization and recognition of the moral rights of authors of the works.

According to the WPPT and Decision 351 of 1993, the protection of these rights must not be less than 50 years.

Also, these rights are limited by the following events: a) The private use; b) report on news, provided this does not imply a disguised use all of the phonogram; c) us with pedagogical purposes; d) conduct citations of the work, again, without these involving total reproduction of the phonogram.

2.3. Digital record in the National Register of Copyright

Copyright and Related Rights, unlike protection for industrial property, are protected from the moment the work is originated, according to Article 9 of the Law 23 of 1982 and Articles 52 and 53 of Decision 351. Therefore, the registry is purely declaratory and not constitutive. However, according to Article 6 of Law 44 of 1993, any act in which it is sold or transferred any copyright or Related Rights, must be entered in the National Register of Copyrights as a publicity requirement over third parties.

Decree 460 of 1995 grants the National Directorate of Copyright the administration of the national copyright registry. The registration of works can be done through the website of the DNDA http://www.derechodeautor.gov.co/. It is necessary attach the scanned copies of documents showing, among others, the power of the legal representative of the legal person wishing to register a work, the contract of assignment of property rights must be attached.[3]

2.4. Collective Management Societies on Copyright and Related Rights

Law 44 of 1993 and Decision 351 of 1993 established that to give protection to authors, performers and owners of copyright and related rights, could constitute management partnerships that allowed centralize the collection of rights relating to its partners. Article 1 of Decree 3942 of 2010 established that the National Directorate of Copyright is in charge of authorizing the creation, inspect and monitor the collective management societies. The following table shows the Collective Management Societies of copyright and neighboring currently recognized by the DNDA:

 

Collective Management Societies Resolution authorizing operation
SAYCO: Sociedad de Autores y Compositores de Colombia Resolution 070 of June 5, 1997
ACINPRO: Asociación Colombiana de Intérpretes y Productores Fonográficos Resolution 035 of February 18, 2002
CEDER: Centro Colombiano de Derechos Reprográficos Resolution 035 of February 18, 2002
EGEDA: Entidad de Gestión Colectiva de Derechos de Productores Audiovisuales de Colombia Resolution 208 of November 16, 2006
ACTORES: Actores Sociedad Colombiana de Gestión Resolution No. 275 of September 28, 2011

The royalties owed by the use of works subject to copyright protection can be paid directly to each of the collective management societies mentioned above. In turn, the National Directorate of Copyright has authorized two companies, which are not collective management societies, so they can collect royalties from various collective societies. The first is the “Organization Sayco-Acinpro (OSA),” which is authorized to collect monies payable to the collective societies SAYCO, ACINPRO and CEDER. The second is the “Single Window Collection of Copyright and Related Rights (VID)”[4], which according to the provisions of Article 47 of Decree Law 19 of 2012, has the right to collect royalties payable to any of the collective management societies.


 

[1]           Constitutional Court judgment C-1490 of 2000. Justice Fabio Morón Díaz.

[2] Constitutional Court judgment C-155 of 1998. Justice Vladimiro Naranjo Mesa.

[3] To see more details of the process, please consult the website http://201.234.78.25/trl/Ayudas/TUTORIAL%20PARA%20EL%20REGISTRO%20DE%20OBRAS%20PRESTACIONES%20Y%20CONTRATOS%20A%20TRAV%C9S%20DE%20INTERNET.htm Accessed March 16, 2014.

[4] The National Copyright Office, by Resolution No. 421 of December 28, 2012. conferred the quality of collecting entity to “VID: Single collection Window of Copyright and Related Rights”

 

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