Colombian landmark ruling on copyrights: “without profit there is no criminal offence”

In a landmark ruling, the Supreme Court of Colombia, the highest criminal judicial tribunal and Cassation Court (deals with the Cassation procedures also known in other juridical traditions as right of appeal on points of law), determined that in order to establish a criminal violation of copyright, it is necessary to find if the criminal conduct is for profit-making, if it causes effective injury and if the intention is to cause harm on the right holder.

Judicial interpretation on copyright issues is scarce and uncertain in Colombia. In this context, the Supreme Court’s Cassation ruling 29,188 released 2 weeks ago (30 April 2008) has set guidelines for "the development of national jurisprudence on the nature, scope and meaning of the criminal protection of copyright".

The reasoning behind the judgement involves the transformation of three key points for the interpretation of the rules of criminal copyright: 1. The Berne three steps test (Art. 9.2 Berne Convention that was replicated by Art. 21 Decision 351 of the Andean Community) is an interpretation issue for the judge. 2. The profit-making has to be analysed as a subjective element when approaching criminal offences related to the economic rights of authorship on Copyright (Colombia’s system is derived from the “rights of author” tradition). 3. The mere use of illegal software is not a crime.

The facts giving rise to this judgement are as follows: In 1999, Mr. Guillermo Vélez offered to transfer music from vinyl to digital format on CD-Audio for a price of 5,000 Colombian pesos (approx US$3). This conduct was denounced by Colombian Association of Producers of Phonograms (ASINCOL), who believed that the behaviour could constitute crime against the economic rights of authorship. The computers in which Mr. Vélez conducted the format transfer used unlicensed software (MS-Windows 98, MS-Office 97, MS-99 Encarta, etc). The judge in first and second instance condemned Mr Vélez to a 2 years prison sanction.

The Court addressed several issues on rights of author and copyright systems in the reasoning part of the decision. In this sentence, an important reference is made to the system of fair use in copyright system, and to the model of exceptions and limitations of author’s rights approach; they are explained as necessary balance elements on the intellectual property system. The Court carried out an analysis of the criminal conducts regarding crimes against economic rights on the copyright system, emphasizing that the legal right protected is the economic content of those privileges, therefore a significant injury must be proved to establish that the action conforms to a criminal nature.

The Court continues the analysis with two important examples that state relevant points on the development of copyright following the most recent legislative discussions both in author’s rights and copyright systems (Australia, New Zealand, Canada, etc.). The Court disqualifies as punishable the format-shifting, and the music download from the Internet when there is non-profit intention: "If there are millions of songs circulating on the Internet, the role of criminal law can not concentrate it’s efforts on prosecuting users that are taking advantage of this circumstance to download music that is placed at their disposal". With this interpretation, the highest court in Colombia is in line with global concerns about a legal framework enabling development and cultural access. “Intellectual property: consumers should not be criminalised. MEPs in the committee urges the Commission to rethink the issue of intellectual property in order to assure solutions that are equitable for both big and small actors and strike a balance between the respect of intellectual property and the access to cultural events and content. The committee underlines that on the battle against digital piracy, the solution should not be to criminalise consumers who do not intend to make profit out of their actions. Furthermore, MEPs in the committee suggest campaigns to educate consumers and raise awareness of their responsibilities."

In national and regional Latin American law, the three-step test has been adopted inspired on the French legal system, while the doctrine has considered it as a necessary guideline for the legislative process when including exceptions and limitations to copyright that by nature are exhaustive lists. The reasoning behind the decision of the Supreme Court’s judgement has transformed this conception: henceforth the judge must take into account that for the use to be illegal under analysis before a court "[it] would [have to] infringe upon the normal exploitation of works" or "unreasonably prejudice the legitimate interests of the rights holder." (Read the text of the sentence in Spanish)

This pattern of interpretation has an important background in the French jurisprudence. In the case of the Mulholland Drive DVD, the French Court of Cassation established that the exception of private copy on digital environments affects the normal exploitation of the work. In France, the three-step test has been used for a more restrictive interpretation of this exception, limiting the restriction to copyright. In Colombia, the three-step test has been used for the decriminalization of economically insignificant acts.

It should also be noted that the Court has stated that the punishable conduct regarding software present on a personal computer according to the criminal law is not the "use" but the "reproduction". The court recalls the text or the law as sanctioning not only reproduction but also “the transport, storage, maintenance, distribution, import, sell, offer to acquire the sale or distribution or to provide any title, of reproductions illegally obtained”; therefore the high court highlighted in the ruling that "the mere use of a computer program is not described as punishable”.

The Court address the “piracy” concept as an economic issue where a large scale is necessary, the decision’s scope is not the legalization of “piracy”. As it is well known worldwide, groups of drug traffickers and organized crime, as the Colombian paramilitaries, are involved in the profitable business of national and transnational piracy. These organizations are true mafias, they meet the profit-making criteria and might be the ones causing significant injury to copyright holders. These organizations are the real target of criminal law.

This decision points out the liberal principles of criminal law that had been vanishing in recent years from the Colombian law, with the inclusion of “abstract danger” crimes, as happens in the criminal protection regarding Technological Protection Measures (TPM). The Supreme Court’s decision rise to defend criminal law as a last resort and can be used as precedent throughout Latin America, where the criminal system and intellectual property laws are similar. The Court’s main message is that right holders should bear in mind civil actions for compensation of damages as the natural judicial remedy leaving criminal law as the option of last resort because, recalling the title of the work of one of the copyright fathers, criminal law is not just for "Miserables".

This is an abridged adaptation for English-speaking readers of an article published 9 May 2008 on equinoXio.

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