On August 7, 2012, iLEI (Spanish acronym for Initiative for Freedom on Expression on the Internet), a special program of the Center for Studies in Freedom of Expression and Access to Information (CELE) at Argentina's University of Palermo, submitted an amicus curiae request to the Constitutional Court of Colombia as part of the revision process for the law known as “Ley Lleras 2.0″ (Lleras Law 2.0), or Bill 1520 [es; pdf]. CELE requested to be considered a “friend of court” in order to provide input on discussions around the unconstitutionality of the law that will reform Colombia's copyright regime.
The request raises four key considerations that might be made when analyzing the constitutionality of any copyright law on the Internet: efficiency and innovation, proportionality, fair use and chilling effects.
In arguments for protecting copyright, encouragement of innovation and retribution for authors have historically been focal points. In their request, CELE argues that while protections must not be abolished, it is imperative today, in the “digital era,” to re-think these protections, particularly in a context where creative works are mainly information (a non-rival and non-exclusive good).
On the subject of proportionality, the document notes that the protection of copyright on the Internet must be weighed against the negative impact it could have for exercising one's right to freedom of expression. This proves especially important in light of Article 13 of the American Convention of Human Rights, which bans any action that might result in censorship of content prior to its publication. The document highlights that Bill 1520 “has various rules with applications that are not proportionate,” and adds that if the priority of the regulation is to stop violations of copyright at all costs “more innocent people will be affected and freedom of expression and due process will be restricted at a higher level.”
As for fair use provisions, the request mentions the need for copyright frameworks to be reasonable and for them to consider “the nature of ordinary online behaviors that do not infringe on the rights of copyright owners;” and, if such behaviors do infringe on copyright, that they are not met with disproportionate measures of protection. This is the case in Article 15, which includes exceptions that don't protect, for instance, those who alter digital rights management (DRM) to allow for the legal use of a content, as this could bring them financial gain, though it would not affect the rights holder.
Finally, the document calls attention to the chilling effects of an imbalanced copyright protection system on fair use. As the amicus notes, this can limit openness in the digital environment and can even lead to self-censorship among citizens. Article 5 of the Lleras Law 2.0 points out that CELE notes that this grants the copyright holder “very broad authority to use their material, as the prohibition of any kind of reproduction or public communication.” This approach, the request reads, “seems to ignore dynamics that are inherent to the online activity that, we insist, don't seem to affect rights-holder interests. And if in addition to this authority we employ too narrow a definition for fair use –as specifically stipulated on Article 13– we will be faced with a series of conditions that may limit free expression on the Internet.”
In short, all of these are aspects that, beyond the Colombian case, might apply when discussing any legal framework on copyright. The key element, as stated on the document, is to consider these regulations through the Interamerican System of Human Rights, in order to avoid generating “unbalanced” norms between intellectual property and fundamental rights, such as free expression and access to culture.
The document submitted to the Constitutional Court has been signed by Eduardo Bertoni, Director of CELE and former Special Rapporteur for Freedom of Expression of the Organization of American States –OAS- and by Carlos Cortés Castillo, researcher with iLEI.