Presidential decree ends photocopying row

October 26, 2012

Costa Rica’s ongoing dispute over its Intellectual Property Law may finally have come to an end this week, with the signing on Monday of a presidential decree that protects businesses that photocopy academic materials. 

Here’s how it happened:

Politically, it has not helped that the Intellectual Property Law, or Law 8,039, was passed in compliance with intellectual property requirements under the Central America-U.S. Free Trade Agreement (CAFTA), passed in November 2007 over heavy opposition from academics. 

The conflict stems from the law’s outlining of jail terms for intellectual property crimes. University students need to photocopy materials for their studies, and they claim that jail terms are such a draconian punishment that photocopying stores feel inhibited from reproducing academic materials for them. 

Costa Rican intellectual property producers – writers, filmmakers and software programmers – disagree. The law has a specific exemption for reproduction for academic uses. And, if jail terms are removed, IP producers will be left with only weak civil prosecution – which stretches out for years – against slippery IP pirates. 

A student movement against Law 8,039 started in 2009, and an opposing bill (number 17,342) calling for the elimination of jail terms for IP violations was presented by former lawmaker José Merino del Rio. Merino’s congressional term ended, and he died in Cuba of kidney disease last month. 

Even so, Merino’s law stealthily made its way through the legislative process, backed by other lawmakers who took office in 2010. To the surprise of many, Bill 17,342, which sought to modify Law 8,039 by eliminating jail terms for IP violations, passed the assembly on July 21.

Costa Rican intellectual property producers are organized into the Chamber of Information Technology and Commerce, or CAMTIC, which has more than 200 affiliates. While these include multinational companies, 87 percent of membership is small- and medium-sized Tico-capitalized companies. 

Upon legislative passage of Bill  17,342, CAMTIC, backed by the Costa Rican-American Chamber of Commerce, immediately requested that President Laura Chinchilla veto the bill, because of possibly devastating lack of protection for Costa Rican intellectual property. Chinchilla sought advice, thought it over, and vetoed Bill 17,342 on Sept. 25. 

Student rights advocates took to the streets in reaction, and last week, a demonstration outside of the assembly turned nasty, with some lawmakers hit by the old soccer stadium weapon of choice: plastic bags filled with urine.

Some lawmakers have made noises about overriding Chinchilla’s veto. But National Liberation Party legislators, with sufficient votes to block the two-thirds majority needed to override a presidential veto, lined up solidly behind their president. 

For her part, Chinchilla regards the issue as a false choice: Intellectual Property Law 8,039 already contains a specific exception allowing photocopying for academic use with no criminal penalties. So, as a way forward, the president sought to clarify the situation by executive decree. On Monday at Casa Presidencial, Chinchilla signed a decree that did just that. 

Justice Minister Fernando Ferraro explained the crucial question: Did the academic exception for students and professors apply to photocopying businesses that perform the service for them on a for-profit basis? Ferraro said it does, and just to make sure, the new executive decree makes it explicit. 

In addition, Intellectual Property Prosecutor Ricky González was notified of this interpretation, and Costa Rican government prosecutors have been instructed not to bring charges under Law 8,039 for academic photocopying. 

Accompanying Chinchilla at the decree’s signing were filmmaker Esteban Ruiz and Universidad Estatal a Distancia student body president Isabel Sáenz. Ruiz, as a movie producer, and Sáenz, as the head of a university publishing company, both stressed the importance of a legal framework that did not require them to engage in costly, lengthy lawsuits with unknown chances of success, to protect their livelihoods. 

Chinchilla, for her part, was blunt on the issue: “This opposition to the Intellectual Property Law is ideologically based and premised on a false choice. Photocopying for profit for academic use is authorized under Law 8,039. I would like to see one of these protesters who gets so worked up over this issue look a Costa Rican writer or film producer or software engineer in the eye, and tell him that protection of his livelihood should be sacrificed because the law as written may inhibit a few uninformed photocopying companies.”

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