Colombia is part of the Andean Community (CAN) together with Peru, Ecuador and Bolivia. These countries adopted Decision 351 of 1993, which stipulates general rules for the protection of Copyrights and Related Rights. This norm establishes a common regime to harmonize the laws of each member country.
However, we must go back to 1982 when Law 23 was issued regarding Copyrights in Colombia, since it is there where all the legal provisions are found at national level. Of course, this law was modified in 1993, but it is still in force.
Thus, in Colombia we find an interesting ecosystem for the protection of Copyrights. With some particularities of the country’s needs. In this short blog entry, we will explain the main concepts related to Copyrights in Colombia. The reader will have a starting point to approach the subject.
Copyright vs. Derecho de Autor
Although the English translation that has always been used is the term Copyright I want to make a clarification regarding this point. It may seem an unimportant point at first, but it ends up being vital to understand the difference between the Common Law system and the French tradition (where Colombia is located). The literal translation from Spanish to English should be Right of author.
As such we can realize the focus is on the author, not on the copy. In other words, Colombia has a more personalist, not corporealist, vision of this kind of right. Linked to this point, in the Right of author only natural persons can be considered as authors. In copyright, legal entities can be considered authors. Although there are more differences between these two ways of understanding Copyright, the approach given to the author is the most important to understand the Colombian system.
However, in this blog we will use the traditional translation “copyright”.
Work and Author
The concept of work that is protected by Copyright is found in Article 3 of Decision 351/93. There are three essential elements for something to be considered a work. First, it must be an intellectual creation, which is why a legal entities cannot be the author of a work, companies do not have intellect. Only a human being can contribute his intellect to the creation of a work.
The second element is that it must be original. This concept should not be understood if something is fake or original, as a fake copy or something like that. Originality is understood as how the author expresses his personality for the creation of the work. He is not copying anyone else.
And finally, that such creation is expressed in a reproducible form. In Colombia, ideas are not protected by copyright. That is why it is necessary that they are expressed in some form. These three elements must be configured in order to understand that a work exists.
As a clarification, the work is protected from the first moment it is created. In Colombia, no kind of registration is required to protect the work. However, it is possible to register the work at the National Copyright Office (Dirección Nacional de Derechos de Autor – DNDA –), but it is voluntary.
Article 2 of Law 23 of 1982 lists some examples of works, but it is only an enunciative list. It is not a closed list, everything that complies with the three elements of decision 351 is considered a work. Basically in Colombia they are classified in 5 categories: literary works, artistic works, audiovisual works, musical works and software.
Now let’s talk about the concept of author. Decision 351 defines it as “Natural person who performs the intellectual creation”. The need for the author to be a natural person is emphasized. The author is also known as the original holder of the moral and economic rights. When a person (natural or legal entity) different than the author holds the economic rights, it is understood that they are a derivative holder.
When a person is contracted by a company or other person for the creation of a work, the author and original owner will be the contracted person. However, it is presumed that the economic rights have been transferred to the person who commissioned the work. Article 20 of Law 23 sets forth the requirements that must be met for such situation to be presumed. The company will never be the holder of the moral rights, as it happens, for example, in the North American case.
Rights
After talking about the author and the work, it is time to focus on the rights protected by copyright. In Colombia, the moral and economic rights of the author are recognized. Although they are mentioned in Decision 351, we must focus on Chapter II of Law 23 of 1982, since Colombia has a broader protection than the basic protection of the Andean Community.
Economic Rights
Economic rights are understood as the author’s right to economically exploit his work. There are six in total and they are found in Article 12 of Law 23 of 1982.
- Reproduction: to fix or obtain copies of the work.
- Public communication: allowing people to access the work.
- Distribution: of the original or copies.
- Importation
- Rental
- Transformation: adaptation, translation or arrangement
The general rule of time for protection of the economic rights is the life of the author plus eighty years after his death. And when the holder of the rights is a company Article 27 stipulates that:
“In all cases in which a literary or artistic work has a legal entity as copyright holder, the term of protection shall be 70 years, counted from the end of the calendar year of the first authorized publication of the work.”
These rights may be transferred to another person. And their conditions can be agreed upon according to specific needs. The four ways in which rights can be transferred are: assignment contract, work for hire (as we saw in numeral 2), legal disposition or by cause of death.
Moral Rights
Moral rights cannot be assigned in any way. The law states that these rights are “perpetual, inalienable and unrenounceable”. They will always be the property of the author of the work. Five moral rights are recognized in Colombia:
- Paternity: to recognize the author as the creator of the work.
- Integrity: to oppose the distortion of the work that causes a negative effect on the author’s reputation.
- Ineditability: to decide whether to release the work to the public or not.
- Modification: to be able to modify it before or after its publication.
- Retraction: To withdraw the work from circulation.
The last two can generate the payment of compensation to third parties if the work had already been assigned for some kind of economic exploitation. As we have seen above, a person will always be the holder of the moral rights.
Related Rights
Finally, we must talk about Related Rights. These are part of the copyrights in Colombia. This type of rights are granted mainly to performers, producers and broadcasts that are made. For example, the author of a song may be a person other than the singer of the song, in this case the author has copyrights and the singer has Related Rights. Specifically for artists and performers, the law establishes six rights:
- Public communication
- Fixation
- Reproduction
- Distribution
- Rental
- Making available to the public
Collective Management of Copyright and Related Rights
The Collective Management of Copyright and Related Rights in Colombia are:
- – SAYCO: Authors and Composers of Colombia.
- – ACINPRO: Performers and Phonographic Producers.
- – CEDER: Reprographic Rights
- – ACTORES: Actors
- – EGEDA: Audiovisual Producers
- – DASC: Audiovisual Directors
- – REDES: Audiovisual, Theatre, Radio and New Technologies Writers
This was a brief tour of the legal ecosystem of copyright law in Colombia. Currently, the importance of this matter, as well as of Intellectual Property in general, continues to grow, and its value in the creative, cultural and entrepreneurial sector is increasingly consolidated.
If you are interested in hiring an Intellectual Property lawyer in Colombia, do not hesitate to e-mail us. We will be pleased to answer you. We speak English. For more information about our services click here.
