Colombian lawmakers recently showed the world exactly what can go wrong when countries agree to unbalanced trade agreements like early versions of ACTA and the still-secret Trans-Pacific Partnership (TPP) . In the lead-up to President Obama’s visit for the Summit of the Americas, the Colombian government rushed to implement the copyright portions of the US-Colombia free trade agreement (FTA). The resulting law is not a win for Internet freedom.
Law 201  will expand copyright protection, penalties, and enforcement in Colombia. The new law comes on the heels of the controversial “Lleras Law,” an earlier bill aimed at complying with the US-Colombia FTA. The Lleras law would have left Internet intermediaries responsible for policing copyright infringement by users, but was shelved last October by Colombia’s congress after a series of public consultations in which civil society leaders, including academic and tech experts, illustrated how the bill would threaten freedom of expression and information for Colombian Internet users.
CDT’s David Sohn and Andrew McDiarmid joined international copyright scholars and advocates in signing a letter  criticizing the new bill and urging thoughtful deliberation, but unlike the Lleras Law, Law 201 was fast-tracked, leaving no time for public consultations or even adequate debate among lawmakers. (The 18 days from introduction to passage was reportedly a record  for the Colombian Congress.) Colombian copyright expert and Creative Commons lead Carolina Botero, formerly the OAS Special Rapporteur for Freedom of Expression, calls Law 201 “worse than the Lleras Law,” pointing out  that it “works wholly in favor of copyright holders and does nothing to balance this.”
Indeed, the problem with the US-Colombia FTA and other similar trade agreements is that they don’t require counterbalancing limitations and exceptions to copyright law such as fair use or the “substantial non-infringing use” test from caselaw . Colombian legislators could have chosen to add balancing provisions to the law, while still adhering to the parameters of the agreement, but neglected to consider this in their haste to pass the law.
Limitations and exceptions are vital to copyright regimes. They can allow students, artists, or any other user to quote a copyright-protected book, remix artworks, or engage in myriad other forms of online innovation and knowledge-sharing that stricter regimes might prohibit. They help encourage investment in Internet services. Broadly speaking, for the majority of Internet users, they improve access to information and provide more breathing room for free expression. Without this balance, Colombian users may face far stricter limitations on access to and use of information than their US counterparts, enforced via increased penalties required by the FTA.
CDT and other advocates have warned that the skewed requirements of these FTAs could lead to the imbalanced result we saw in Colombia. While countries are free to implement limitations and exceptions of their own – and some, like Chile in 2010, have – we fear that too often signatories will simply implement the bare minimum required by the agreement. The result is a less flexible copyright scheme that favors strict enforcement over access to knowledge, online innovation, and new forms of engagement with creative works.
Advocates on the ground in Colombia are reporting that the experts’ letter did have some impact, and will help drive impending challenges to the law’s constitutionality. Local digital rights advocacy group RedPaTodos  is coordinating academics, technologists, and other leaders to challenge the law in Colombia’s constitutional court. Even if they succeed, and we hope they do, Colombia’s new law will stand out as an example of the dangers of exporting incomplete portraits of US copyright law through trade agreements. CDT will continue working with other groups to ensure that the TPP, currently being negotiated, doesn’t push its signatories down the same unfortunate path.