No profit, no offence ...

It is not every day that the IPKat receives news from Colombia, so he was particularly interested to read this little feature sent in by Jhonny Antonio Pabón Cadavid and fellow blogger Carolina Botero Cabrera.

Right: unlawful sale of CDs on the Peru-Colombia border (photo by Jhonny Pabón).

They write:

"In a landmark ruling, the Supreme Court of Colombia-- the highest criminal judicial tribunal and Court of Cassation -- ruled that, in order to establish criminal copyright infringement, it is necessary to ask whether the allegedly criminal conduct is profit-making, whether it causes effective injury and whether 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 on 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 judgment involves the three key points for the interpretation of the rules of criminal copyright:

1. Interpretation of the Berne three step test (Art. 9.2 Berne Convention, replicated by Art. 21 Decision 351 of the Andean Community) is an issue for the judge.

2. Profit-making has to be analysed as a subjective element when approaching criminal offences related to the economic rights of authorship (Colombia’s system is derived from an author's rights tradition).

3. The mere use of illegal software is not a crime.

The facts giving rise to this judgment are as follows: In 1999 Guillermo Velez 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 the Colombian Association of Producers of Phonograms (ASINCOL) ,which believed that this could be a crime against the economic rights of authorship. The computers in which Velez conducted the format transfer used unlicensed software (MS-Windows 98, MS-Office 97, MS-99 Encarta, etc). Thes judge at first and second instance convicted Velez and sentenced him to two years in prison.

In its decision the Court referred to fair use in the copyright system, and to the model of exceptions and limitations under the author's rights approach; they were explained as being a necessary balance in the IP system. The Court carried out an analysis of the criminal conduct regarding crimes against economic rights within copyright, emphasizing that the legal right protected is the economic content of those privileges. Accordingly a significant injury must be proved in order to establish that the action in question conforms is of a criminal nature.

The Court then gave two important examples that state relevant points on the development of copyright following the most recent legislative discussions in both author’s rights and copyright systems (eg Australia, New Zealand, Canada). The Court ruled out liability for format-shifting, and of music downloads from the internet, when there is a non-profit intention:

"If there are millions of songs circulating on the internet, the role of
criminal law cannot concentrate its 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" (European Parliament).

In national and regional Latin American law, adoption of the three-step test was inspired by the French legal system, while 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 Supreme Court’s judgment 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" (see Spanish text of the court order)

This pattern of interpretation has an important background in French jurisprudence. In Mulholland Drive DVD the French Court of Cassation established that the exception for private copying in 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 commercially insignificant acts.

The Court has stated that 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 law as rendering unlawful not only reproduction but also “the transport, storage, maintenance, distribution, import, sale, offer to acquire the sale or distribution or to provide any title, of reproductions illegally obtained”; therefore the high court emphasised in the ruling that "the mere use of a computer program is not described as punishable”.

The Court says that, while the “piracy” concept is an economic issue where a large scale is necessary, the decision's scope is not the legalization of “piracy”. As is well known, groups of drug traffickers and organized crime such 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 (TPMs). The Supreme Court’s decision rises 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 remember that civil actions for compensation of damages are the natural judicial remedy, leaving criminal law as the option of last resort because, recalling the title of the work of one of opyright's fathers, criminal law is not just for "Les Miserables"".

The IPKat thanks Jhonny and Carolina for taking the effort and write. He agrees that a US$3 offer to format-shift is not exactly the Crime of the Century and there must be a so many more important crimes for the Colombian enforcement officers to chase -- but equally he wonders whether it was the rampancy of infringement, coupled with the expense and effort of civil enforcement, that encouraged ASINCOL to press for a prosecution. Merpel adds, it's the same old question again: if I have a stall full of apples and someone comes along and steals one, my loss is small and the effort involved in doing anything about it is disproportionately large. Yet when loads of people each steal one apple, I'm left without any stock. Striking the balance between a single copyright owner and a single would-be or actual small infringer is easier than achieving the same thing against many such infringers.

Cat care in Colombia here
The great Colombian Crime That Never Was, here and here