Only the owner of economic copyright can prosecute infringements in Colombia

The United States of America has asked Colombia, within the framework of the negotiations of the Free Trade Agreement, to put an end to the differences existing in Colombian legislation between authorship and legal ownership of copyright.

If authorship and legal ownership of copyright are different, as it occurs in Colombia and in many other countries of the world, it is because the original authorship can only refer to the author as an individual, without prejudice that another individual person or legal entity, different from the author, in compliance with certain conditions, can have the capacity of derived legal owner of the economic copyright.

However, if authorship and ownership are the same, as it happens in the United States of America, then legal entities can be authors or originating legal owners of copyright.

This distinction is just a sample of the controversy existing between two manners of interpreting law: the American common-law, where judicial precedents are essential, and a system based on written legislation and formality prevail, called continental law or civil law.

The United States of America has proposed in the framework of the negotiations of the Free Trade Agreement is that Colombia should implement a system similar to the copyright, where the emphasis be in its economic aspects and in the possibility of reproducing and exploiting works economically (copyright) and not in author?s rights (droit d´auteur), in which, as indicated by its name, the emphasis is on the protection of the moral rights of creator of the work.

The USA proposal surely originates in what has occurred to different companies of that nationality that have lost processes for infringement of copyright instituted in Colombia for failing to comply with the formalities of the local legislation, specifically for not having signed a contract waiving economic rights with the author of the work. (individual).

The reason for above is that in the United States of America, all individuals having rights on the work, including federations and licensees, being duly authorized and having permanent legal recognition, have legal authorization for acting in copyright infringement processes.

A RECENT CASE 34th Civil Circuit Court, March 31, 2003, VERBAL PUBLIC HEARING, ARTICLE 432 OF CIVIL PROCEDURAL CODE, MICROSOFT CORPORATION, and ADOBE SYSTEMS INCORPORATED against PROMOCIONES INDUSTRIALES S.A. PROINDUSTRIAL S.A. and CARLOS VICENTE ANTONIO VARGAS LOPEZ:

Microsoft Corporation and Adobe Systems instituted in 2002 before a Colombian Civil circuit court a demand against a Colombian company for reproducing, executing and in general using without legal authorization 52 computer programs without license.

Microsoft alleged that it was legally authorized for suing because the illegal programs had its trademark, logo or emblem, which took it to conclude that Microsoft was the original author. The defendant, on the other hand, alleged that Microsoft and Adobe Systems Incorporated did not contribute the evidence required for demonstrating that they were the legal owners of the economic rights in Colombia.

The judge decided in favor of the Colombian company that used unlicensed programs because Microsoft did not demonstrate the assignment of the economic copyright on the software, and in Colombia the original author of a work can only be an individual.

The judge explained that the assignment of economic copyright through an inter vivos act in Colombia requires the fulfillment of certain formalities, namely: a contract of assignment or transference of economic copyright or a work contract must be signed. In both cases, it is required for its validity, that contracts be incorporated in a public document or a private document duly recognized before a notary by both parties. As a condition for proving ownership before third parties, this contract must be registered at the National Registry of Copyright of the Special Administrative Unit of the National Directorship of Copyright.

For obtaining copyright protection on a software that is being used without license in Colombia by a commercial company, it is necessary that the legal entity considering that its rights are being breached, prove the its legal ownership on the economic copyright, and specifically contribute the documentary evidence to which Art. 183 of Law 23 de 1982 refers, that is a contract incorporated to a public deed or a private document recognized before a notary by both parties.

In the instant process, neither Microsoft nor Adobe Systems legalized, under Colombian law, the hundreds of contracts of assignment of economic copyright signed in the United States with the designers and systems engineers who created the software, and therefore the Colombian judge issued a sentence refusing its claims.

Even though it is true that Andean countries like Colombia should give up their legal formalities and allow that a person who has signed a license contract be legitimized for acting in an infringement process, it is also true that there is diversity in the world and there are many types of legislations.

Colombia, as all the countries of the Andean Community (Venezuela, Ecuador, Peru and Bolivia) follows a French civil law model, while the U.S. law in regards to copyright is sui generis.

Even though it is said that globalization is a panacea, it is extremely difficult to change the legal models of all countries and to impose all of a sudden, a new manner to apply law, with the pretext of a bilateral commercial treaty, such as the Foreign Trade Agreement between Colombia and the USA.