On April 4th, 2011, German Vargas Lleras, Colombia’s Minister of Interior and Justice, proposed a bill before the Colombian Congress intended to regulate Internet intermediary liability for their users’ online copyright infringement and to legally fortify copyright laws. Called the Lleras Act, it was based on the U.S.’s Digital Millennium Copyright Act (DMCA) and a 2010 Chilean Intellectual Property Act, and it was a means for domestic regulation to comply with the Free Trade Agreement (FTA) (also known as the U.S.-Colombia Trade Promotion Agreement). The FTA, which relates to copyright, was signed between the United States of America and Colombia in 2006 and formally signed into U.S. law in October 2011.
Due to the vague language of the proposal and the unrealistically excessive penalties for alleged infringers, the Lleras Act would have effectively forced service providers to spy on, disconnect, and censor their users in the name of protecting copyright. The bill was framed as removing copyright liabilities from intermediaries, when it would have actually enforced strict measures on them to extra-judicially uphold copyrights.
The Lleras Act was controversial from the moment it was introduced. The bill did not go through a public debate period, denying Colombian civil society and citizens the right to study and discuss the implications of the bill before it was put forth to Congress . Many aspects of the bill were simply unrealistic. For example, Article 11 of the government’s first draft would have forced intermediaries to act upon the rightsholder’s reports of infringement within the very short timeframe of 72 hours of being notified. ISPs would have had to take down or block content immediately, while the proposal allowed a lax “reasonable period of time” for an ISP to address a user’s request to restore the disputed content. Article 17 of the initial government draft included text on criminal charges for copyright infringement, even though the FTA had already enacted harsh penalties - including a prison sentence for up to 8 years.
The Lleras Act created public outcry, and civil society activists heavily campaigned to challenge and defeat this proposal before it could pass. On November 2, 2011, responding to several months of widespread advocacy, the Senate archived the Lleras Act, thereby defeating it. However, there is speculation that the Ministry of Technologies will be drafting a new similar bill as soon as January 2012. Even though it was ultimately filed away into the legal archives, the Lleras Act was an important milestone for the copyright reform movement in Colombia.
What is notable about this proposal was how it rallied newfound fervor for the net freedom movement in Colombia and across Latin America. Amidst many recent socio-legal reforms, this kind of civil reaction to a proposed law has been uncommon. There had never been a bill introduced in Colombia that so explicitly targeted copyright in a way that posed such a threat to freedom of expression. Moreover, its defeat will most likely help to prevent similar models of excessive copyright enforcement from being duplicated elsewhere, especially in Latin America. While this was a victory for Internet users, there is sure to be similar legislation introduced in the near future that addresses the terms of the Colombian FTA.
The Lleras Act would have provided safe harbors for service providers, but in order for an intermediary to be exempt from liability it would need to comply with a series of requirements transcribed from the text of the FTA, and therefore from the DMCA. The first draft of the Lleras Act provided for the ISP to take down content, block access to a specific non-domestic online location, or to completely terminate specified users’ accounts.
It could sanction service providers accused of facilitating piracy, considering them co-infringers and therefore just as responsible for any copyright infringement. Intermediaries would effectively lose their safe harbor. Users charged with multiple instances of infringement were tagged as “repeat offenders,” which could result in blocked pages and even suspended user access to the Internet. It should be noted that these provisions were moderated in later versions of the bill.read more...
Article 15 of the first government-proposed Act stated, upon a rightsholder’s request, a judge may order the intermediary to submit information in order to identify the possible infringer. The article also specifically stated that “confidential information” was included. Moreover, the cancellation of access for “repeat offenders” entails that the user’s data must be preserved somewhere for potential future prosecution.
Because the procedures described in the Act utilize intermediaries as the main policing force, it also implies that they will be holding these records for an indeterminate amount of time.read more...