Who’s right on copyright law?

From the print edition

Costa Rica has a fledgling, homegrown high-tech sector. Yet there are now sufficient companies producing digital products – software, multimedia, digital imaging and digital music – that have organized into the Chamber of Information Tech–nology and Commerce (CAMTIC), with more than 200 affiliates. These include multinational companies, but 87 percent of membership is small and medium-sized companies capitalized by Ticos, according to Otto Rivera, CAMTIC’s executive director. 

Given the ease of pirating everything digital, these companies need intellectual property protection. Costa Rica’s Law for Observation of Intellectual Property (Law 8,039) recognizes this, and intellectual property violations carry criminal penalties in Costa Rica, including jail time and fines. 

A much older Costa Rican cottage industry exists around the campus of every university in the country: photocopying stores and bookstores that specialize in photocopying. Although the machines frequently used are digital, it is principally a paper-based activity. More sophisticated stores can go beyond just copying and spiral binding loose sheets, some to the point of virtually cloning books. Does this run afoul of Law 8,039? 

Apparently, it’s a matter of who does the copying. The law contains a specific exception allowing reproduction of copyrighted material for academic purposes. But there’s a doubt: Does this exception cover only the end user of the reproduced intellectual property (the student or professor), or is there a right under the academic exception to go into for-profit business to facilitate these reproductions? 

Doubt over this last question, combined with the criminal penalties under Law 8,039, has apparently had a chilling effect on the university photocopying companies.  

So, we have two different industries with clashing interests at odds over a law that sought to reconcile both sides, but failed to do so in practice. 

Politically, it has not helped that Law 8,039 was passed in compliance with intellectual property requirements under the Costa Rica-U.S. Free Trade Agreement, which was heavily opposed by academics. A student movement against the law started in 2009. 

Former lawmaker José Merino Del Río, of the Broad Front Party, presented a reform bill. With a new Legislative Assembly, Merino’s bill stealthily made its way through Congress, backed by other lawmakers. To the surprise of many, Bill 17,342, which would modify Law 8,039, was passed by the assembly on July 21. 

The main modification was elimination of jail time for violation of intellectual property rights. This change succeeds in getting rid of the alleged deterrent to free operation of photocopying shops. But it leaves Costa Rican intellectual property developers, most of whom do not have strong financial resources, with only a “see-you-in-court” recourse to stop pirating of their products.

Given that court cases can stretch out for years in Costa Rica, and that any fine assessed against the information pirate might be insignificant in relation to sales of the stolen intellectual property, it seems that Bill 17,342 has thrown the intellectual-property-protection baby out with the academic-photocopying bathwater.

Bill 17,342, though passed in second debate by Congress, still awaits the signature of President Laura Chinchilla to become law. CAMTIC, surprised by an important intellectual property rights law modification that seemed to come out of nowhere, asked Chinchilla to veto the bill. The Costa Rican-American Chamber of Commerce has seconded CAMTIC’s request for a presidential veto.

CAMTIC, which is in favor of the academic exception to protection of intellectual property rights under Law 8,039, has sat down to negotiate with proponents of the reform bill. Jose María Villalta, Del Rio’s Broad Front Party successor in the assembly, now functions as spokesman for the decriminalization faction. Apparently, opponents of the current law have hardened their position: They now oppose jail terms for intellectual property right violations as disproportionate and unacceptable on any terms. 

Lawmakers, now aware that a hornets’ nest of conflicting interests has been stirred up over this issue, have manifested willingness to re-examine the law to try to strike a better balance. For now, Chinchilla has the word. Only her signature stands between protection of a small, but important, intellectual property industry in Costa Rica on the one hand, or giving effective free reign to copyright pirates on the other. 

We’ll see what Chinchilla comes up with when she returns from her China trip.