A big step: Colombia's accession to the OECD

The Organization for Economic Cooperation and Development (OECD) formally invited Colombia to open membership talks on May 30, 2013, at the end of the Ministerial Council Meeting in Paris.

The organisation was created in 1961 after evolving from the OEEC (created in Paris 1948 as one of the organisations that accompanied the initiation of the Marshall Plan in Europe), and is a cooperation organisation where the member states take decisions by consensus.

The initiation of the process for accession follows other countries that recently joined, most notably Chie, which was accepted as a member in 2010. Successful finalisation of the process may take as long as three years, of which the next step will be the establishment of individual roadmaps for each country (OECD’s Council Resolution ‘A general Procedure for Future Accessions’, May 13, 2007, doc C[2007[31/FINAL, May 16 2007, par 4 and 5.)

The announcement was received enthusiastically by Fitch Ratings: “We see the invitation, in part, as recognition of Colombia’s largely successful macroeconomic policies, which have helped sustain growth momentum, while attracting investment and keeping inflation rates low.”

The Colombian Minister of Trade, Industry and Tourism, Sergio Diaz-Granados, also highlighted the event, emphasising the complex array of the steps already taken by the Colombian government, together with the OECD, including Colombia’s accession to several OECD instruments and an in-depth review of domestic policies.

In the IP area, Colombia has entered into several multilateral agreements:

(a)  Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980: Approved by Law 1515 of 2012, ratification has not been made.

(b)   WIPO Copyright Treaty (1996): in force 2002.

(c)   WIPO Performances and Phonograms Treaty (1996): in force 2002.

(d)   Patent Cooperation Treaty (1970), as amended in 1979: in force 2001.

(e)  Trademark Law Treaty (1994): in force 2012.

(f) International Convention for the Protection of New Varieties of Plants (1978) (UPOV Convention): in force since September 13, 1996, Law 243 of 1995.

(g)  Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989): in force 2012.

(h)  Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974): approved law 1519/12 not in force.

Other agreements have not been approved:

(a)  Patent Law Treaty (2000).

(b)  Hague Agreement Concerning the International Registration of Industrial Designs (1999).

(c)  International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention): Approved by Congress by Law 1518 of 2012; Constitutional Court (Judgment C-1051/12) did not approve the law due to lack of consultation with indigenous communities.

"Additional efforts will be required by the country to improve action in certain fields covering research and development and technology protection, and more extended use of patents."

Legislation on trademarks has been amended to provide for:

•  Registration of scent and sound trademarks.

•  Regulation of collective and certification marks.

•  Abolishing mandatory registration of trademark licences.

Other steps have been taken, among them strengthening protection through the criminal laws. Legislation has been passed to criminalise some violations of IP laws, or to strengthen existing provisions by amending them, making them more encompassing and wider in coverage.

Another way of tackling trade in counterfeit goods was to issue regulations to border measures, which were already in Decision 486, but lacked the necessary instructions and implementing regulations for customs; thus, Decree 4540 of December 22, 2006 was issued regulating the matter.

Hand in hand with regulations criminalising illegal use of IP (Law 599 of 2000), other laws have been issued: Law 1266 of 2008 and Law 1581 of 2012 covering data protection. Law 1273 of 2009 is related to cybercrime—in force since January 5, 2009; this law added a new title to the Colombian Criminal Code (Title VII bis) called “information and data protection”.

The new title is divided in two chapters: (1) crimes that target computers and directly attack the confidentiality, integrity and availability of information systems, and (2) crimes facilitated by computer networks or devices, the primary target of which is independent of the computer network or device.

Additional protection is contemplated on other important subjects: (i) biodiversity and traditional knowledge; and (ii) retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet.

Despite the government’s efforts to pass Law 1520 of 2012 regarding protection of IP in the digital era, the law was declared unconstitutional by the Constitutional Court on procedural grounds, due to having received approval in the wrong Congressional committees before passing to the Senate. Therefore, the government is likely submit to Congress another bill covering the aspects of Law 1520, as follows:

(a)   Increased protection for copyrighted works when owned by legal entities. Protection at present is for 50 years, Law 1520 had increased it to 70 years.

(b)  Prohibition of retransmission of television or radio signals.

(c)   Increased civil, administrative and criminal liability for those who infringe copyright. For instance, among other measures, Law 1520 had imposed stringent penalties to those who would elude technical measures to control access to copyrighted works, such as audio, video, and other works.

(d)   Reduction of the national requirements for national television programming. Law 1520 had reduced from 50 percent to 30 percent of these requirements for weekends, and holidays.

(e)   Exceptions to copyright protection, for instance use in libraries and for educational purposes, will be narrowed and made more specific.

Additional efforts will be required by the country to improve action in certain fields covering research and development and technology protection, more extended use of patents, improving the quality of patents, grants for R&D, and related matters.

In conclusion, protection for IP in Colombia has improved substantially, leaving relatively minor gaps as compared with the OECD’s desired level of protection. Upgraded protection in trademarks, for copyrighted works in a digital economy, stronger protection for patents and test data, and tougher penalties for piracy and counterfeiting have contributed to this purpose.