Thursday, 21 September 2017

Dancing with pride: Jeremy did it!

Our dear Jeremy Phillips, the founder of the IPTango, IPKat and many other IP blogs, was awarded the David Goldring Volunteer Award from Marques. The Marques website describes beautifully the meaning of the award attached to the name David Goldring whose 'huge contribution to the organisation over the years' was remarkable [more info here]. David Goldring passed away in June 2016 and the award was 'inaugurated and was presented to his wife Delia (Dee) Goldring at the Annual meeting in September 2016'. This is the second time the award is awarded and it is with such pride that we hear that our own Jeremy was the recipient!

Jeremy is a well known figure among IP lawyers. He has been one of the top IP professors, researcher and practitioner but one of his key characteristics and quite valuable is his passion for whatever he does (surely after retirement he may be running after the grand-kids with a big smile -- perhaps he is learning to dance tango). His energy is contagious and it is an example that many of us follow.

Congratulations Jeremy! Felicidades! We miss you.

Wednesday, 20 September 2017

New Registers can Oppose Marks Previously Filled for Registration

Monsieur Periné, a Colombian musical group, achieved recognition of its name as a well-known trademark. This declaratory was made by the Superintendence of Industry and Commerce (SIC) within the opposition process issued by this musical group against the register of the mixed mark ‘Monsieur Perruné’ filed for registration in class 41 by Emepe S.A.S., a company offering live music performances and services. One of the arguments used by the company in its defence was that its application for registration of the trademark was issued before (14 October 2016) to that one made by Monsieur Periné (11 November 2016). Under Article 136 of the Decision 486 of the Andean Community of Nations (CAN) the signs that would unduly harm a third-party right cannot be registered as marks, especially when ‘they are identical or similar to a mark previously filed for registration or registered by a third party in respect of the same goods or services, or for goods or services regarding which the use of the mark could cause a risk of confusion or association.’ (Emphasis added)
However, more than an argument against the opposition issued by Monsieur Periné, this just goes to show that the musical group is acting in line with the Colombian trademark law. The opposition is a legal proceeding that anyone with a legitimate interest can initiate to try to prevent the registration of a mark. On the matter, Article 147 of the Decision 486 of the CAN establishes that ‘the opponent shall prove his genuine interest in the market of the member country in which the opposition is filed, which they must do by applying for registration at the time of filing the opposition.’ From these two Articles, it has been interpreted that an opposition can be suited either when there is a mark previously filled for registration or already registered, or when no registration exists. Unless the opposition is presented based on the prior existence of a register, the opposition must be issued together with an application for the registration of the mark that allegedly could be violated with the concession of the opposed mark.

Evidently, Monsieur Periné is a successful musical group otherwise its name would not have been recognised as a well-known mark. By contrast, Emepe S.A.S. was a little know company, which apparently was trying to take unfair advantage of the prestige of Monsieur Periné. This, because of the obvious similarities between the signs ‘Monsieur Periné’ and ‘Monsieur Perruné.’
The case in which a registered mark is declared well-known within an opposition process was analysed in a previous post. (See post here)

Finally, a document of opposition does not require a petition for the recognition of a well-known mark, but, if included, the decision must not necessarily be favourable. For example, the register of the sign ‘Forever Sexy’ filled in class 25 by Victoria’s Secret was recently denied. The decision was made based on the prior registration of the mark ‘Forever’ in classes 9, 14, 18, 24, 25, and 35, a property of Forever 21 Inc. ‘Forever’ was not recognised as a well-known mark at the end of this process. Nonetheless, due to their similarity, the mark ‘Forever Sexy’ was not able to be registered.


Post written by Florelia Vallejo Trujillo
Assistant Professor, Universidad del Tolima, Colombia
PhD Candidate University of Nottingham, UK                    

Friday, 15 September 2017

The Pope's visit to Colombia: an IP matter

Early September Colombia received a very special and anticipated visit.
As Pope Francis prepared to visit Colombia for a six-day Apostolic Journey, there were some challenges before the arrival of the leader of the Roman Catholic Church. One of the main issues as expected was security. The visit was taken and aimed to “dream about the possibility of transforming [Colombia] and taking the first step.” Colombia is said to be a war-torn country (with more than 50 years of armed conflict) and the visit promoted the themes of peace and reconciliation.

Official Logo and slogan - 'Demos el primer paso'
According to the Vatican Radio ‘The logo of the Journey contains the motto of the Pope’s Apostolic Journey: “Let’s take the first step”’. Such sign was especially created for the visit of Pope Francis to Colombia.

demos el primer paso
Before the Pope’s arrival an application for registration of the mixed sign ‘demos el primer paso’ was presented by the Episcopal Conference of Colombia at the Superintendence de Industrial y Comercio (SIC). The Episcopal Conference of Colombia is a collegiate body constituted by the bishops of the country, and are the legal representatives of Pope Francis in Colombia.

During the registration process there were no oppositions and the examiner not finding any grounds of irregularity established by the Decision 486 of the Andean Community granted the mark on 23 August 2017 (Resolution 50963/2017).

The newspaper El Mundo acknowledges that the image of celebrities and famous people is common in Colombia since SIC allows the registration of names of ‘personas’ to avoid their use by third parties who may take advantage of their reputation and goodwill. The newspaper gave the example of the registration of ‘Father Rafael García Herreros’, a priest who founded the religious institution Minuto de Dios Corporation, which acted successfully in the registration of the father’s name. SIC refers to cases where the registration of a name has helped to opposed to applications such as the cases of 'Parque Juan Pablo II' and 'Velas y Velones Juan Pablo II'. The signs were denied registraiton under Art 136 of Decision 486.

Monday, 11 September 2017

Webinar "IPRs for EU SMEs in Mexico"

Our friends of Latin America IPR SME Helpdesk have organized a very interesting webinar regarding Intellectual Property Rights for EU SMEs in Mexico.

The webinar aims to give an overview about the current situation as regards Intellectual Property Rights and Innovation as well as to provide practical information about the registration and enforcement of the main IPRs in Mexico.

Attendees will have the chance to see the importance and main features of each Intellectual Property Right when operating in Mexico.

The webinar will be held on Wednesday, September 13, 2017, at 15.00 hours (Brussels time) in English.

This free-of-charge event is business-oriented and is conducted by top professionals that know exactly what an SME needs to know to improve its business strategy regarding IP registration and enforcement in the Latin America region.

More information and registration here.

Friday, 8 September 2017

Criptomonedas: EE.UU., Corea del Sur, Canadá y China regulan las ICOs (Initial Coin Offering)

El fenómeno de las criptomonedas -basadas en la tecnología subyacente de la blockchain o "cadena de bloques"- está en una etapa crítica porque los Estados han comenzado a aplicar medidas tendientes a su regulación, más o menos restrictivas según el mercado respectivo.

Desde la aparición de esta clase de instrumentos digitales basados en la encriptación (cuya naturaleza jurídica es una definición en desarrollo) han surgido métodos de levantamiento de capital vinculados a sus propiedades tecnológicas. Uno de esos métodos, que combina el crowdfunding con las criptomonedas, son las llamadas ICOs (Initial Coin Offering: Oferta inicial de moneda) o Token Sales (venta de tokens) consistentes en la emisión de una criptomoneda o criptodivisa, ligada a un proyecto determinado, mediante el uso de la "cadena de bloques" como medio de control de las transacciones.

Este modelo es similar a la emisión de acciones (IPO), aunque, en vez de acciones, el inversor recibe "tokens" o "monedas virtuales" que simbolizan digitalmente una cuota de interés en el dominio del proyecto. Este token, en la práctica, es un certificado encriptado de acciones virtuales de la compañía emisora que, en el futuro, pueden tener valor real apreciado (o depreciado) según el destino del proyecto. Este modelo ha logrado recaudar 1.333 millones de euros en el último año y está generando un mercado muy dinámico que llamó la atención de las instituciones financieras tradicionales y de los entes regulatorios estatales.

En Estados Unidos, a fines del mes de Julio recién pasado, la Securities and Exchange Commission (SEC), organismo encargado de fiscalizar los mercados financieros de Estados Unidos, calificó a las criptomonedas como securities (activos financieros) e informó que las nuevas emisiones deberán estar sujetas a las regulaciones vigentes, las cuales serían similares a las que se exigen para cualquier salida a bolsa.

En Asia, la Comisión para la Regulación de los Mercados de Servicios Financieros de Corea del Sur (FSC) informó la intención de regular este mercado y China, por su parte, anunció su prohibición por ilegales, y ordenó la devolución de los fondos recaudados por este mecanismo.

Para prohibir esta forma de financiamiento el Banco Popular Chino (Banco Central) se ha hecho cargo de la naturaleza de los títulos de propiedad (token) emitidos en actividades de financiación, de la financiación ilegal en la libre emisión de bonos sin regulación, el fortalecimiento de plataformas de financiación y gestión de negociación de monedas virtuales, de las instituciones financieras no bancarias y las entidades de pago inhibidas de ejercer operaciones ICO, del riesgo para el público y el fortalecimiento de las instituciones de autorregulación del sector.

El efecto en el mercado de estas medidas regulatorias restrictivas fue la caída en el precio de las criptomonedas (como Bitcoin y Ethereum) y el cierre, al menos en China de más de cuarenta plataformas ICO.

No obstante, no todo son noticias regulatorias restrictivas. En Canadá, la Autorite des Marches Financiers (AMF) del Quebec está analizando con buenos ojos todo el potencial de estos instrumentos basados en la tecnología blockchain con el fin de darle un encuadre inclusivo dentro del sistema de financiamiento de empresa, con protección a los inversores, aunque con mayor flexibilidad y menos exigencias que para el mercado tradicional fintech. Es el mismo camino que ha tomado la Canadian Securities Administration (CSA). 

Wednesday, 6 September 2017

SPORTFLIX, the Netflix of Sports, is suspended for an alleged violation of IPRs

In the same way that Netflix changed the way of watching tv and films, Sportflix, a Mexican company with international partners, was intended to be a platform to provide sports events. Its launch was announced on 30th August last. However, it was suspended on the 29th by the Mexican Industrial Property Institute (IMPI).

On its website, the IMPI explains that following a complaint submitted through its piracy mailbox, the portal was revised. After that, evidence of a possible violation of the Federal Copyright Law and the Mexican Industrial Property Law was found. This, because the content of the web apparently infringes some of the IPRs of the companies with the broadcasting rights to transmit the sports events found in the Sportflix web site, such as Televisa, TV Azteca, Fox Sports, ESPN, and Univisión.

As a consequence, a provisional measure consisting in suspending the launching of Sportflix was imposed, and a verification visit was communicated. Nonetheless, the verification visit scheduled for August 29th could not be completed because the company´s staff opposed to it.

During an interview with the newspaper El Financiero, Carlos Martínez, the president of Fox Networks Group Latin America, expressed that Fox Sports and other sports content suppliers are waiting for the results of the investigation under development before issuing a complaint about the infraction of their IPRs.
For now, organisations such as the F1, the Fórmula E, the Mexican Football League, and the Champions League confirmed that they have no agreement with Sportflix for the broadcasting rights of the sports contents found on its portal. For its part, Sportflix announces on its web site that ‘before to provide a service in exchange for a subscription, the platform must go through the needed processes, so as to give sports streaming of the best quality.’ It is also affirmed that ‘the pre-register continues to be open’ after which a coupon will be received via email for a free day of access to the platform and the right to be ‘the first to know the date in which the service will be enabled.’

As it can be observed, in this case, the interests of the ‘traditional’ and the ‘new’ way to communicate tv shows, films and sports events to the public are combined. For this reason, it is relevant to know how this will end.

Post written by Florelia Vallejo Trujillo

Monday, 4 September 2017

Argentina: Uso de la Indicación Geográfica y DO en las etiquetas de vino se flexibiliza

En Argentina, el Instituto Nacional de Vitivinicultura (INV) y el Instituto Nacional de Propiedad Intelectual (INPI) emitieron la resolución conjunta 247/2017 que permite el uso de denominaciones de origen e indicaciones geográficas que aún no están autorizadas en vinos mientras dure el proceso de verificación. Los requisitos son los siguientes:

a) Con anterioridad al uso del nombre geográfico, los usuarios deben haber iniciado el trámite de reconocimiento de la correspondiente Indicación Geográfica (IG) o Denominación de Origen Controlada (DOC), en los términos del Artículo 4° o 13 de la Ley N° 25.163 y sus reglamentaciones, respectivamente.

b) La solicitud debe ser presentada por una persona física o jurídica o por las organizaciones mencionadas en el Artículo 8° de la Ley N° 25.163. En el primer caso deberá individualizar eventuales interesados.

c) El producto debe cumplir con los requisitos establecidos por el Artículo 6° de la Ley N° 25.163.

d) Se presume sin admitir prueba en contrario la aceptación por parte de los usuarios que se trata de un derecho autorizado en los términos del Artículo 2° de la presente y que el reconocimiento y derecho a uso de la Indicación Geográfica (IG) o Denominación de Origen Controlada (DOC) solicitada se encuentra condicionada al cumplimiento de la totalidad de los requisitos que correspondan en cada caso.

e) No podrá consignarse en los marbetes que se trata de una IG o DOC, sino limitarse a la mención del nombre geográfico pertinente.

f) Podrá mencionarse en cualquiera de los elementos que constituyen el etiquetado, con la ubicación y tipo de letra que considere adecuado, siempre que el tamaño de esta no supere los tres milímetros (3 mm) y su uso sea realizado en forma indicativa no marcaria.

g) Acreditar acciones sociales en el interior del área geográfica pretendida en beneficio de su comunidad.

h) Todo otro requisito que el Instituto Nacional de Vitivinicultura entienda procedente teniendo en cuenta las particularidades de cada caso, el que deberá ser notificado a los peticionantes dentro del plazo de DIEZ (10) días a partir de su solicitud.

La resolución dispone que los nombres geográficos que no hayan sido objeto de reconocimiento en algunas de las categorías establecidas por la Ley Nº 25.163, podrán consignarse en el etiquetado de vinos y/o bebidas espirituosas de naturaleza vínica durante el tiempo que dure el procedimiento de reconocimiento y derecho a uso de una IG o DOC.

La nueva resolución agrega que podrán consignarse pero el uso será provisorio, transitorio, condicional, precario y revocable, sin derecho para el o los administrados a su mantenimiento indefinido o a indemnización alguna en caso de revocación.

Fuente:  Boletin Oficial

Explain that to me, ‘despacito’ –step by step-

This week we open it up with a Guest Post from David Felipe Alvarez Amezquita, a Colombian lawyer currently working on his PhD at University of Nottingham.

Explain that to me, ‘despacito’ –step by step-
Copyright and politics. Why is important for an author to keep his rights?

In support for the elections to the constitutional assembly that was recently voted in Venezuela, during a rally, President Maduro publicly used a transformed version of the song “Despacito”. The song, an unprecedented hit this year, has been used on many occasions, but this particular case has created the total rejection from its authors.
Luis Fonsi said it clearly: “I have never been consulted nor I have given permission for the change or use of the lyrics of <<Despacito>> for political purposes…” See here (Spanish).
This has not been the first case, though. During the recent presidential race in the US, the use of certain songs by Trump’s campaign was fiercely rejected.
This has been a clear example of how the role that authors play in the protection of copyright goes beyond the mere economic interests and touches the limits of freedom of expression and the exercise of democracy. But, what if the rights of the author do not belong to her or him anymore?
The General Comment 17, on “The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1 (c), of the Covenant)” published by the Committee on Economic, Social and Cultural Rights, highlights the fact that author’s moral interests should be understood as the protection of the “intrinsically personal character of every creation of the human mind”. This results in the right to be recognised as the creator of the works and the right to object any distortion, mutilation or other modification or derogatory action that would be prejudicial to author’s honour and reputation.
Nevertheless, in some cases, moral rights can be transferred or eventually waived. The legal tradition in which continental copyright (author’s rights) is inscribed avoid this possibility. Instead, the legal tradition for common law copyright allows that these rights can be transferred or waived. For instance, most, if not all of the Latin American countries protect author’s moral rights under conditions of inalienability, non-waiver, and perpetuity. Instead, the US has developed a complex system of protection of moral rights to produce conformity with their adhesion to the Berne Convention, article 6.2. (See for example the case of visual arts, Section 106). The UK, on the other hand, prohibits the assignation of the moral rights but accepts their waiving under written contract (sections 94 and 87).
Why is this important? Because moral rights have not been a peaceful issue in the international arena. One of the best examples of this is the express exclusion of these rights from the main elements of protection of copyright within the TRIPS agreement. By this way, moral rights have been situated outside of the international trade law. Instead, on the area of human rights, author’s moral interests have been enacted since the UDHR. How these two spheres interact on this matter is a question yet to be solved.  
In this video time lapse, it can be seen how different countries have accessed to the international systems that protect copyright and author’s human rights. It calls the attention that it was not until the late 1980’s that the US adhered to the Berne Convention and that once they did, in the next decade the TRIPS agreement was adopted and the cascade of countries following this was immediate. A similar cascade occurred when the ICESCR was adopted, but the US was out of it (this country signed the Covenant but has never adopted it). Unfortunately, the ICESCR lacks on swift tools of enforceability that the TRIPS agreement has.
Nevertheless, protecting author’s moral interests can impact areas situated beyond commerce and closer to democracy. This shows that the interface between human rights and copyright towards the protection of author's fundamental rights is not something to disregard.
Even if in some cases countries with a continental tradition have tilted their policies towards a possible transferability or waiver of moral rights, as in the case of works created by a commission or under employment, it looks like a weak author within society is bad for democracy and not only for business.

David's research is related to the protection of author’s fundamental rights through copyright in a comparative perspective. He has been awarded the COLCIENCIAS and the University of Tolima scholarships for doctoral studies. He has worked as researcher and lecturer in HEIs in Colombia, as Head of the Register Office of Copyright and as Copyright Advisor for CERLALC-UNESCO.  
David can be contacted here.

Wednesday, 30 August 2017

Politics and IP. Regulation and IP. Just Two of the Topics Up for Discussion in Cartagena This October!

Highlighted recently here on IP Tango, the International Trademark Association (INTA) will be hosting its Changing Landscape of Latin America conference in Cartagena, Colombia, on October 2–3.

Serving on the conference project team, Iris Quadrio (Marval, O’Farrell & Mairal, Argentina) and Urko Ochoa (Minino, Dominican Republic) contributed to the educational program and will be moderating a number of the sessions during the conference. The conference will be presented in English.

Moderated by Ms. Quadrio, a session titled “Politics and IP – Navigating This Unlikely Pair,” will feature Luiz Henrique O. do Amaral (Dannemann Siemsen, Brazil) and Prof. Dr. Gustavo Juan Schötz (National Director of Copyright, Ministry of Justice and Human Rights, Argentina). This session ties in closely with the theme of the conference, as it touches upon the changes that are reshaping the political landscape across Latin America, with Brazil transitioning towards presidential elections in 2018 after a particularly difficult period, and Argentina and Peru signaling important developments after their respective new administrations took office.

Speakers will delve into the changing political and economic landscape and its impact on issues such as the negotiation of agreements as they relate to intellectual property (IP) and trademarks, including the relaunch of Mercosur/EU trade talks. This discussion will also cover the role of the new trademark and IP authorities in Latin America, with their own list of priorities and reform projects, bringing participants up to date on the most recent changes and developments in the region.

Mr. Ochoa will lead a panel of experts comprising Melissa Pérez de Patterson (Procter & Gamble, Panama), Sergio Barragán (Pepsico, Mexico), and Rodrigo Velasco (Alessandri Abogados, Chile) in a session concerning the balance between IP rights and the increasing regulatory landscape. They will discuss a numbers of issues raised as a consequence of the new regulatory regimes which are expanding in the region, the corresponding restrictions for IP rights, and how IP owners and practitioners are facing the new challenges. Participants should expect to receive a clear regional overview of the matter, as well as the conflicts arising from the overlap between IP and regulatory provisions (such as packaging claims, use of characters, and other restrictions), and expectations for future developments.

Following the conference, on October 4, INTA will host a workshop, Free Trade Zones: Commerce vs. Counterfeits, during which brand owners, free trade zone authorities, government officials, and other stakeholders will explore the ongoing threat of counterfeiting in free trade zones.

Register here to join INTA in Cartagena this October.

Post written by INTA. 

Monday, 28 August 2017

INTA to Host Changing Landscape of Latin America Conference in Cartagena

The International Trademark Association (INTA) has been increasing its engagement, education, and outreach throughout Latin America in 2017. In May, the Association officially opened a Representative Office in Santiago, Chile, and, in July, announced the appointment of José Luis Londoño Fernández as its Chief Representative Officer for the Latin America and Caribbean. Looking ahead, on October 2–3, INTA will gather intellectual property (IP) experts and thought leaders from across the region and around the world in Cartagena, Colombia, for its Changing Landscape of Latin America conference.

Conference speakers and participants will explore the unique economic, social, and political changes in the region and their impact on IP, and share advice on business engagement and investment in the region. The sessions will be presented in English.
A key conference highlight will be the opening keynote speaker: Francisco Samper, Founder and President of MullenLowe SSP3 and Regional Director, MullenLowe Latin America. Mr. Samper, a true innovator, will discuss how advertising campaigns influenced the Colombian peace process, and explain how his ad agency used its brand insight and advertising knowledge to assist in the political movement for peace in Colombia. This inspiring presentation will reveal ways for brand owners to depend their engagement in their communities to help achieve common goals.

The educational program includes sessions covering Latin America’s legislative and regulatory landscape and will touch upon the increasing challenge of balancing IP rights with regulatory restrictions affecting businesses. Panelists will also share ideas for best practices for collaboration between IP counsel and entrepreneurs as they balance the need to protect their IP with growing their businesses.

Another key topic of discussion is data protection. Conference participants will gain insight into Latin American data protection laws so that they can (1) assist their clients in protecting themselves with the proper procedures and (2) act nimbly and effectively when a data breach occurs. Additional topics include IP enforcement and how to combat online counterfeiting;  opportunities and challenges presented by social media; and how to protect and enhance their brand conversation on the social media platforms.

Following the conference, on October 4, INTA will host a workshop, Free Trade Zones: Commerce vs. Counterfeits, during which brand owners, free trade zone authorities, government officials, and other stakeholders will explore the ongoing threat of counterfeiting in free trade zones.

Register here to join INTA in Cartagena this October.

Post written by INTA.

Copyright Holders, do not worry… Colombian Constitutional Jurisprudence on hotels has not changed

On July 6th this year, the Hotel and Tourism Association of Colombia (Cotelco) issued a lawsuit of unconstitutionality against Articles 159 and 163 of the National Copyright Law (Law 23 of 1982). These Articles establish that any communication to the public requires prior authorisation from the right holders of the communicated musical works. Hotels are within the places considered by the law as those where this type of use happens. Therefore, it would be thought that any communication to the public going on in a hotel are subjected to pay royalties. Nonetheless, Article 83 of the General Law for Tourism (Law 300 of 1996) decrees that ‘rooms in hotel and accommodation establishments that are rented with housing purposes are assimilated to a private home’.

This fact could have caused a huge controversy regarding Copyright obligations. However, in 1997, the Constitutional Court examined the constitutionality of Article 83 of the Tourism Law. In doing so, the Corporation concluded (Judgement C-282 of 1997) that hotels must pay royalties when the musical works are communicated to the public ‘including the communication of sounds or musical videos through internal networks to the rooms.’ Furthermore, it was clarified that ‘it is different, when guests, in the intimacy of a hotel room, decided to listen to musical works using the electronic devices they take with them – such as a portable recorder or a Walkman-’. For the Court, something different to the described example would be unconstitutional. Thus, it confirmed that hotels must pay royalties when music is communicated to the public in ‘public’ and ‘private’ places, such as corridors and rooms. First, because otherwise, it will constitute a violation of intellectual property rights. Second, because it will also break the principle of equality, due to the creation of an exclusion in favour of hotels while other commercial establishments will have to pay royalties.

In a clear attempt to avoid their obligations regarding Copyrights, the hotel sector, through its Association Cotelco, filed the mentioned constitutional action. They argued that the Copyright Law violate Articles 1, 13, 15, 18, 21 and 28 of the Political Constitution of Colombia, which are related to the fundamental rights to privacy, freedom of conscience, dignity, freedom, and equality. It was claimed that the fact that the Copyright Law does not distinguish between ‘private’ and ‘public’ spaces in hotels is a violation of the Constitutional Law due to the consequent limitation of the personal autonomy of people staying in a hotel.

On July 31st, the Constitutional Court declared inadmissible Cotelco’s demand through the writ D-12233. In the document was expressed that the lawsuit did not meet the criteria for this kind of action. Moreover, it was reminded that the scope of the expression ‘hotel’ had previously been clarified in the Judgement C-282 of 1997. Nevertheless, it seems clear that the writ changes the content of the Judgment.

In addition to dismissing the lawsuit, in this opportunity, the Court initiates its argument stating that the Judgement C-282 affirmed that ‘the communication to the public of musical works is not public or private depending on the qualification of the place, but regarding the subject who carry out the action and the economic end – lucrative or of particular and private recreation - sought by this person’ (own translation). Following this, the exclusion of the obligation when guests reproduce musical works using their devices is repeated. And, on that basis, it is finally concluded that ‘it is clear that, for Copyright purposes, the Court has interpreted that the expression ‘hotels’ is not extended to the inside of the rooms when the guests reproduce musical works, either for mechanic processes, electronic, sonorous, or audio-visuals’ (own translation). In its conclusion, the Court omits clarification on the use of the guests ‘own’ devices. This omission is fundamental because as a result an entirely different idea has been expressed. It is not the same the use by guests of their own Walkman or iPod than their use of the hotel’s TV or radio. This difference is the aspect supporting the exception. Because, for the Court, in the first case the obligation to obtain authorisation before reproducing musical works falls on guests; while in the second case, such an obligation falls on the hotel.In this way, and apparently by mistake, the Constitutional Court issued the writ D-12233 in the opposite direction than the expressed in the Judgement C-282 of 1997.

It is worth mentioning that a writ cannot modify a judgement. And, therefore, that the Colombian constitutional jurisprudence has not been modified. However, it cannot be denied that this fact will be used by the hotel industry to try to avoid compliance with the payment of royalties. Thus, probably a new legal battle is coming.

Latin America case law on this matter has consistently affirmed that the communication to the public of musical works in hotel rooms is subject to the payment of royalties. For example, in Argentina and Brazil, this use is considered as an economic exploitation because it directly affects the price of rooms (the hotel rooms with radios and/or TVs are more expensive). In the same vein, Chilean case law has accepted that any communication to the public of musical works must pay royalties because hotels are commercial establishments. For its part, in Paraguay, any communication to the public of all kind of artistic works triggers the obligation to pay royalties. Like Colombia, case law in Peru and Uruguay have analysed the use of works in a ‘domestic environment.’ Courts in these countries have concluded that although the guests are accessing musical works in a private place, only house rooms are considered domestic environments. From there, the obligation to pay royalties when this use happens in hotel rooms.

Post written by Florelia Vallejo Trujillo
Assistant Professor, Universidad del Tolima, Colombia
PhD Candidate University of Nottingham, UK