by Digital Rights LAC on April 2, 2014
In the last chapter of a long debate, the National Institute for the Defense of Competition and Protection of Intellectual Property suspended the board of the Peruvian Association of Authors and Composers for one year. But what hides within this long discussion in a country like Peru, which is advancing firmly in its economic and cultural development? A radical change, perhaps.
By, Miguel Morachimo
During October 2013, an investigative report managed to inform the public on how copyright is designed and enforced in Peru. Its revelations have prompted congressional hearings, a state decision to suspend the directors of a collecting society, the first designation, after ten years, of a new director for the Office of Copyright and up to thirteen bills that aim to modify the most controversial parts of the law. Does this represent a real change for copyright in Peru or is it just a temporary phenomenon?
Although the report by Marco Sifuentes and Jonathan Castro on the questionable operations of the Peruvian Association of Authors and Composers (APDAYC) was not the first to talk about the issue, it has been the main one that has attracted the most attention in recent years.
The facts that were questioned covered at one end, the various conflicts of interest that linked APDAYC managers with radios, record companies, producers and a small group of artists. This also exposed a level of deep social discontent regarding certain rules inscribed in our legislation which allow collecting societies to charge for the use of music in marriages, nonprofit activities and small businesses, such as hair salons or warehouses. Additionally, they would also include artists and works that are not even directly or indirectly part of their catalog.
Throughout several weeks the number of reports that covered the bewilderment and reaction of artists, entrepreneurs, authorities and users towards the APDAYC, multiplied. In short time, and despite the attempts of its directors to justify their actions, the whole episode left an imprint among the Peruvian people, leaving them with the impression that something was certainly wrong with the APDAYC and that something needed to be done about it.
The national authority in charge of supervising the collecting societies is the National Institute for the Defense of Competition and Intellectual Property (Indecopi). This administrative body was created during the nineties in order to specialize and decongest law enforcement on key trade issues such as intellectual property, competition and consumer protection, among other issues. Although Indecopi has the power to initiate cases on its own initiative and issue sanctions, their decisions can finally be checked in a court, which is quite common.
In recent years, the Copyright Office had accumulated several investigations and even sanctions against the APDAYC, but little has this done to make matters change. In early March, there was confirmation that the APDAYC was applying questionable rules for measuring popularity and distribution of royalties among its associates, which persuaded the Indecopi Copyright Commission to order the temporary suspension of the current directors of the company. In response, the APDAYC called the decision “unfair and illegal” and announced that they were willing to exhaust all possible means of defense and had already filed an appeal which has put the decision on hold.
In parallel, special hearings were held in Congress within the commissions of Culture, Supervision and Consumer Protection. As a result, there are currently thirteen bills pending that seek to change different parts of Legislative Decree 822, copyright law of Peru. Some of these bills propose changing specific rules on how collecting societies operate, stemming from the allegations in recent months against the APDAYC. Therefore, there is an intent to change the method of electing its governing board, banning re-elections, avoiding direct and indirect conflicts of interest, and the obligation of having to convincingly demonstrate their legitimate representation of works that they charge for.
However, there are also proposals for even deeper reforms. Some proposals include new exceptions and limitations for domestic purposes, non-profit activities, libraries, small businesses and religious activities. Our copyright law, published in 1996, has been changed very few times and has almost always worked in favor of a more rigid and maximalist system. For the first time in eighteen years, there are many bills that seek to put the rights of users at the same level as those of the authors. Regardless of the outcome , the mere discussion of these issues is very necessary and welcome in a country that is moving forward in many cultural aspects and is eager to have better access to culture and knowledge.
The best thing that can happen after the APDAYC scandal is not the resignation of its officers or the dismantling of the collecting society. Without overlooking the existing individual responsibilities, perhaps the best thing that could happen is that the APDAYC will serve us as an excuse for us, as a country, to confront and discuss a long pending issue. A state that seeks to build its cultural policy and to promote respect for intellectual property can not afford to close its eyes to its own reality, which is summarized in little things like the fact that the largest center for retail sales of illegal copies in the whole country (Polvos Azules) is located just a few blocks away from the Supreme Court.
Peru needs to identify the current problems of the copyright system and discuss possible solutions. It is a debate that is rarely spoken in public about yet we often act as if we have a very clear understanding of it, in areas such as the secret negotiations of the Trans Pacific agreement (TPP) where Peru is merely sitting and waiting to assume obligations that weigh much more than any given law passed in Congress.
Intervening the APDAYC is necessary, just as it is for the authorities to be made responsible for ensuring that the laws are enforced. However, intervening the copyright system in Peru is urgent to put a stop to cases like that which involved the APDAYC, also for building a culture of compliance supported by clear and consistent rules and maintaining the balance between fair compensation for creators and defending the human right of access to culture and knowledge.
Miguel Morrachimo is director at Hiperderecho .
Translate: Franklin Roach