This is an informal case summary prepared for the purposes of facilitating exchange during the 2024 WIPO IP Judges Forum.
Session 1: Frontier Technologies and Intellectual Property Adjudication
Court of Justice of the Andean Community [2022]: Preliminary Ruling 68-IP-2021
Date of judgment: December 15, 2022
Issuing authority: Court of Justice of the Andean Community
Level of the issuing authority: Final Instance
Type of procedure: Judicial (Constitutional)
Subject matter: Copyright
Plaintiff: Tatiana Londoño Camargo
Defendant: Constitutional Court of Colombia
Keywords: Copyright, transfer of economic rights, forms of exploitation, new technologies.
Basic facts: The Constitutional Court of Colombia requested a preliminary interpretation of Decision 351 of the Andean Community to determine whether Article 181 of the Colombian Law Number 1955 (2019) is unconstitutional, as it establishes that any transfer of economic rights (copyright) to a third party is invalid, when the transfer relates to forms of exploitation which are non-existent or unknown at the time of the transfer (e.g. new technologies).
Held: Article 31 of Decision 351 ensures that economic rights transfers and licenses are confined to the explicitly agreed forms of exploitation, including current and foreseeable technologies, thereby safeguarding the rights holder's interests.
Relevant holdings in relation to Session 1: Frontier Technologies and Intellectual Property Adjudication:
Article 31 of Decision 351 states that any transfer of economic rights, authorizations, or licenses of use is limited to the forms of exploitation and other modalities expressly agreed upon in the respective contract. This provision emphasizes the contractual freedom of parties to define the specific modalities of exploitation of economic rights, whether through transfer, authorization, or licensing. The term "expressly agreed" mandates that the types of exploitation must be clearly identified in the contract, prohibiting general or indeterminate references such as "any other type of exploitation that appears in the future." Contracts should specify the genre, means, technology, or features of the exploitation.
Furthermore, explicitly stated forms of exploitation encompass current technologies and those reasonably inferred from the contract. For example, specifying "all forms of exploitation through the Internet" would cover future Internet-based technologies. Contracts may also include "catch-all clauses" to cover unlisted but related forms of exploitation. For instance, a clause mentioning "distribution by cassette, floppy disk, compact disc (CD), and other material supports readable by analog, digital, or electronic devices" would implicitly include DVDs and Blu-rays.
Article 31 should be interpreted broadly, limiting transfers, authorizations, or licenses to expressly agreed forms of exploitation and those reasonably deduced from the contract. Parties may agree on exploitation forms based on current, new, emerging, or experimental technologies, with intellectual property rights not expressly transferred being retained by the author or performer. Rights holders can negotiate transfers or licenses for any defined form of exploitation, respecting the autonomy of the parties and common market practices without extending to uncertain or diffuse limits. The contract must specify whether the license is exclusive or non-exclusive and detail terms such as duration and consideration. Only expressly determined modalities are transferred, with all other rights reserved to the owner.
In summary, Article 31 of Decision 351 ensures that economic rights transfers and licenses are confined to the explicitly agreed forms of exploitation, including current and foreseeable technologies, thereby safeguarding the rights holder's interests.
Relevant legislation: Decision 351 of the Andean Community.