Good times for Site blocking in Colombia
2023 has been a great year in our fight against digital piracy. This year we have achieved different site blockings in favor of Videogame Publishers, Audiovisual Producers and Football Broadcasters.
Thanks to the cooperation of four Local Internet Service Providers (ISPs), voluntary blockings has been successfully accomplished. However, some ISPs in which voluntary blockings has been requested, have not fulfilled legitimate blocking claims arguing the so called “net neutrality” principle and despite the fact, Colombian Law does not have solid safe harbors for ISPs[1]. In fact, article 54 of Law 1450 of 2011 provides that even users can request ISPs the blocking of any illegal content. There is no current exemption by which an ISP would not have to block content when there is a blocking claim against major sources of piracy, such as websites with the words “Cuevana” and “Roja Directa” where thousands of films, series, videogames are illegally made available to the public.
ISPs that do not block illegal content claims may be liable as they should be considered as facilitators of copyright and/or related rights infringement according to article 54 of Andean Community Decision number 351 of 1993. Rightsowners in which voluntary blockings cannot be directly reached, can even start infringement actions against ISPs in virtue of article 54. In the event a Court evidences that an ISP did not block illegal content that was initially claimed before an ISP, the latter may be considered liable.
As it is almost impossible to identify the person or persons that upload illegal sites (Direct Infringer), the mentioned provision of the Andean Decision has been really important to claim against Indirect Infringers that are usually copyright and neighboring rights infringers facilitators. Despite ISPs that provides access to the Internet are not usually the ones that upload illegal content, due to the fact that they are in the best position to block infringement content, they may be considered infringers when a valid blocking claim is requested and they do not block the infringer site.
Furthermore, there are recent precautionary measures by the Copyright Office that have also ordered all existing ISPs in Colombia the blocking of illegal sites. Said measures have been started against direct infringers, however, it is highly important to underline the possibility of ordering all existing ISPs the blocking of infringement sites and despite only one ISP may be included as an indirect infringer or third interested party in the procedure when the plaintif cannot locate the direct infringer. Due to the recent precautionary measures blocking Court orders where all ISPs operating in Colombia must block infringing content, plaintiffs must not worry in suing all ISPs or including them as third parties in order to obtain effective blocking precautionary measures. As long as a Court evidences that the plaintiff owns the copyright or related right that is illegally made available to the public, the Court would order the immediate cease of the infringement by ordering the site blocking to all ISPs providing access to internet in Colombia.
Last but not least, there is a recent precautionary measure site blocking order in Colombia by which dynamic blockings has been granted. This is a landmark Decision against piracy as once the Court has ordered the blocking of one major domain (For example: www.cuevana.com) it gives plaintiffs the power to request the Ministry of Information Technology and Communications (Government Entity that authorize the operation to all existing ISPs) fast further blockings against derivations of infringing domains (For example: www.cuevanaxls.com). Some requirements such as providing a bond must be fulfilled in order to use said possibility but this is a major advance in the fight against digital piracy where infringing sites may be replicated in seconds.
Despite the rise of illegal streaming sites worldwide, the previous voluntary and mandatory site blockings, plus the new dynamic blockings are great news for Rightsowners that would like to enforce their IP in Colombia.
Stephanie Drexler
Senior Associate
[1] Colombia is still pending to implement some important obligations agreed in the Free Trade Agreement with the United States. One of these topics are the Limitations and Exceptions on ISPs Liability (Safe Harbors) and notice and take down procedures.
