Liste de questions concernant les moyens de faire respecter les droits au titre de l'article 63:2 de l'Accord sur les ADPIC ‒ Afficher les détails du document

Colombia

a) Procédures et mesures correctives judiciaires civiles

The Code of Civil Procedure provides as follows: "Article 127. Examination of the files. The files may only be examined by: 1. The parties; 2. the accredited lawyers; 3. duly authorized agents of the latter, but only in relation to matters in which they intervene; 4. officers of the court; 5. civil servants by reason of their duties; 6. persons authorized by the court, for teaching or scientific research purposes. As long as any notification to be effected personally to a party or his/her representative remains pending, neither the former nor the latter, nor an agent of the latter, may examine the proceedings until such notification has been effected." In positive law, there are rules dealing with information which is not confidential in nature and is accessible to the public. Moreover, Article 61 of the Commercial Code states that a merchant's books and papers may not be examined by persons other than their owners or the persons authorized by the latter, except by virtue of an order by the competent authority. Furthermore, in respect of information provided as evidence and involving a trade secret, Article 262 of Decision 486 is applicable. At the same time, the law establishes mechanisms for the protection of confidential information, by prohibiting its disclosure and providing for the punishment of conduct which infringes the right to keep such information confidential. Article 16 of Law 256 of 1992 describes as unfair the "disclosure or exploitation of industrial secrets or any other type of business secrets without authorization from the holder, to persons legitimately granted access but subject to an obligation to exercise reserve". Further, pursuant to Article 38 of Law 200 of 1995, failure to perform official duties, the abuse or improper exercise of rights or functions or engagement in prohibited conduct constitutes a disciplinary offence on the part of civil servants, giving rise to the imposition of the corresponding sanctions.

Injunctions In the context of proceedings concerned with copyright and related rights, the court may, in addition to other measures, order penalization of the infringing activity. - Legislation on unfair competition Inasmuch as violation of industrial property rights may involve misleading acts , deception and/or exploitation of the reputation of others , which constitute unfair competition under the terms of Law 256 of 1996, such violation is punishable by means of the corresponding remedies provided for in the above-mentioned law. Article 20 of Law 256 of 1996 regulates actions that may be brought (before the competent courts or the Supervisory Authority for Industry and Trade, in accordance with the provisions of Articles 143 and 144 of Law 448 of 1998) as a result of conduct constituting unfair competition. The law states that such actions may be of two kinds: declaratory actions to obtain a conviction, involving a request that the acts performed be declared unlawful by the court and that the infringer consequently be ordered to terminate the effects produced by those acts and provide compensation for the injury caused; and preventive actions or proceedings for interdiction, whereby the court is requested to prevent the performance of an act of unfair competition that has not yet been carried out or to prohibit the act even though it has not yet caused any injury. - Prohibition on the use of a mark, logo, trade name or commercial sign Under the terms of Articles 607 and 609 of the Commercial Code, a party injured by the use of a mark, logo, trade name or commercial sign, may apply to the circuit civil courts to prevent such use and claim the corresponding damages in an action which, if successful, entails the relevant prohibition of use and order to pay damages. Damages, including recovery of profits, and expenses, including attorney's fees The claim for damages may form part of a declaratory civil action, pursuant to Articles 242 and 243 of Law 23 of 1982. Although Article 45 of the TRIPS Agreement is covered by Section 2 ("Civil and administrative procedures and remedies"), it should be pointed out that the criminal law also provides for the possibility of obtaining compensation for damage caused by an infringement of copyright, which is classified as an offence. Indeed, Article 13 of the Code of Criminal Procedure establishes the restoration of rights as one of its guiding principles. Under this Article, the judicial authorities shall, wherever possible, adopt the measures necessary to ensure cessation of the effects produced by perpetration of the punishable act and a return to the status quo ante, so that the violated rights are restored. Andean Decision 351 of 1993 provides as follows: "Article 57. The competent national authority may likewise order the following: (a) Payment to the owner of the infringed rights of adequate compensation or indemnification for damage and injury sustained as a result of the infringement". The same Andean Decision 351 of 1993 also provides: "Article 57. The competent national authority may likewise order the following:" (…) "(b) That the infringer shall bear the cost of the proceedings incurred by the owner of the infringed right". At the same time, the Code of Civil Procedure provides: "Article 304. Amended. D.E. 2282/89, Article 1 paragraph 134. Content of the judgement. (…) The part of the judgement containing the verdict shall be placed under the heading "Administering justice on behalf of the Republic of Colombia and by authority of the law"; it shall contain specific and clear decisions on each of the claims made, any pleas which call for decision, the costs and damages to be borne by the parties and their authorized representatives, and other subjects on which a decision is required under the terms of this Code." (No added emphasis in the text). Article 571 of the Commercial Code, in accordance with the provisions of Articles 238, 239, 240, 241, 242, 243 and 244 of Title XV of Decision 486 of the Commission of the Cartagena Agreement – "On Actions for Infringement of Rights - provides that the owner or licensee of a patent, utility model, industrial design, mark, logo, trade name or commercial sign may take action for damages resulting from their usurpation without the need to request the corresponding precautionary measures, or in cases where such measures have been refused. Moreover, the costs relating to the proceedings (stamp duties, fees for officers of the court, formalities and legal agency ) must be ordered ex officio by the court against the losing party. Destruction or other disposal of infringing goods and materials/implements for their production Law 44 of 1993 provides as follows: "Article 55. Impounded publications, copies, reproductions, moulds, plates, printing blocks, negatives, tapes, covers or labels shall be subject to judicial inspection with the assistance of the expert, and once shown to be illegal by this means, shall be destroyed by the criminal investigation authorities, in the presence of the court officer, with notification to the defence and the party claiming damages." "Article 56. Impounded goods intended directly or indirectly for the production, reproduction, distribution, transport or marketing of illegal copies shall be attached or seized ex officio, and following valuation, those that are not to be destroyed shall be awarded under the adverse judgement to the parties injured by the punishable act, by way of damages, or shall be put up for auction for that purpose." Bearing in mind that there is no exhaustive list of the precautionary measures that may be requested in the course of civil proceedings, application may be made for the implementation of precautionary measures which, while not expressly provided for in civil legislation, are not excluded thereby. They include the following: Confiscation of the implements and effects used to commit a fraudulent punishable act or derived from its perpetration and not available on the open market, which shall be placed under the control of the State prosecuting authority or the entity appointed by the latter, unless the law requires that they be destroyed in accordance with the provisions of Article 338 of the Code of Criminal Procedure. The new Code of Criminal Procedures provides for the confiscation of products or merchandise, publications, copies, reproductions, moulds, plates, printing blocks, negatives, tapes, covers or labels seized in the investigation of intellectual property offences and, provided that they are shown to be illegal, for their destruction in accordance with the provisions of Article 67. Confiscation of substances, appliances and other objects intended for the performance of acts connected with the description of goods with distinctive marks which are misleading in respect of their origin or content , in accordance with the provisions of Article 43 of Decree 1355 of 1970 and Article 42 which provides that, if the act is performed by traders personally or through the action of persons in establishments owned by them, the closure of the establishment concerned for up to six months shall be ordered. Confiscation of material intended for the perpetration of the infringement, or which are the subject of the infringement, may be requested in proceedings brought before the circuit civil courts and the Supervisory Authority for Industry and Trade, on the grounds that, although provision is made for this measure under criminal and police legislation, its application may be requested in civil proceedings since no exhaustive list exists of the precautionary measures which may be requested.

b) Procédures et mesures correctives administratives

Article 267 of the Administrative Litigation Code provides as follows: "Article 267. Unregulated matters. In matters not covered by this Code, the Code of Civil Procedure shall be followed insofar as it is compatible with the nature of the proceedings applicable in the administrative courts." Administrative authority responsible for processing the registration and deposit of industrial property rights Since enforcement procedures are meant to permit effective action against any act of infringement of intellectual property rights, in accordance with the provisions of Article 41 of the 1995 Agreement between WIPO and WTO, provision must be made within this type of procedure for the possibility of challenging acts which violate property rights through conduct originating even as early as the stage of processing of an application for registration. The administrative procedure for the registration of marks and patents conducted by the Supervisory Authority for Industry and Trade normally consists of three rulings which may be reduced to one or two, as follows: a substantive ruling is issued, either granting or refusing the application, and further decisions are delivered in the event that applications for review and/or appeals are lodged, where admissible, by the party challenging the original decision. In addition, direct revocation of administrative industrial property decisions by the Supervisory Authority for Industry and Trade may, where appropriate, be requested in accordance with the provisions of Article 69 of the Administrative Litigation Code. Following completion of the administrative stage or the stage of application to the Supervisory Authority for Industry and Trade, a party seeking to challenge the final decision may apply to the administrative court – the Council of State – in order to obtain a favourable ruling to reverse the administrative decision, by bringing actions to establish nullity or absolute nullity and to restore rights, as provided in Article 85 of the Administrative Litigation Code. Which persons have standing to assert intellectual property rights? How may they be represented? Applicants for and holders of industrial property rights who seek to oppose the granting of rights to third parties may apply to the administration directly or through a duly accredited representative, in accordance with the provisions of Article 63 of the Code of Civil Procedure. Are there requirements for mandatory personal appearances before the court by the right holder? There are no provisions requiring the holder of or applicant for industrial property rights to appear personally before the administrative court – the Supervisory Authority for Industry and Trade. However, as a rule, for the purpose of appearing before the courts (Council of State), the person concerned must be represented by a duly accredited representative, in accordance with the provisions of Article 63 of the Code of Civil Procedure. What authority do the administrative or judicial authorities have to order, at the request of an opposing party, a party to a proceeding to produce evidence which lies within its control? Pursuant to Article 283 of the Code of Civil Procedure, a party which seeks to use documents in the possession of the other party shall apply for their disclosure to be ordered at the stage of calling evidence. Similarly, Article 288 provides that partial discovery of the books and papers of a trader which bear a necessary relationship to the subject of the proceedings may be ordered ex officio or at the request of a party. Article 285 of the same statute provides that, if the party ordered to make disclosure objects to doing so, the court shall assess the grounds for such objection and, if it does not find them justified, shall consider as established the facts which the party requesting disclosure intended to prove, unless the submission of evidence by deposition is not admissible in respect of such facts, in which case the objection shall be counted against the party by which it was made. The Article in question also provides that the same procedure will be followed when a party which has not filed an objection fails to produce the document, unless it establishes timely justification for such failure and subsequently produces the document when called upon to do so by the court. What means exist to identify and protect confidential information brought forward as evidence? We refer to the points made in the reply to question 4 in this document. Describe the remedies that may be ordered by the judicial authorities and criteria, legislative or jurisprudential, for their use. The Council of State monitors the lawfulness of decisions taken by the Supervisory Authority for Industry and Trade and may accordingly uphold them as long as they are in conformity with the law, or declare them to be totally or partially void if they are contrary to the law. In such cases, the administrative authority may be ordered to act in a specified manner, for example by cancelling registration of a mark or certification of a patent, carrying out a new study on the registrability of a sign or the patentability of an invention, etc.

a) Mesures judiciaires

Andean Decision 351 of 1993 provides as follows: "Article 56. The competent national authority may order the following precautionary measures: (a) Immediate cessation of the unlawful activity; (b) the seizure, impoundment, sequestration or preventive attachment, as appropriate, of copies produced in violation of any of the rights recognized in this decision; (c) the seizure, impoundment, sequestration or attachment of the apparatus or materials used for the commission of the unlawful act. Precautionary measures shall not be applicable to a copy acquired in good faith for exclusively personal use." In connection with authorization to apply for precautionary measures, Decree 266 of 2000 provides as follows: "Article 77. Preventive attachment. Article 224 of Law 23 of 1982 is amended to read as follows: Article 224. Authors, publishers, producers of phonograms, computer programs or audiovisual works, performers, broadcasting organizations or their successors in title, and anyone responsible for their legal or conventional representation, may apply to the court for the preventive attachment of: 1. Any work, production, publication and copies; 2. the proceeds of the sale or rental of such works, productions, publications or copies; and, 3. the proceeds of the sale or rental of theatrical, cinematographic, musical and other similar shows or entertainments." Law 23 of 1982 provides as follows: "Article 245. The persons referred to in the first subparagraph of the preceding Article may request the court to prohibit or suspend the performance or display of a theatrical, musical or cinematographic work and of similar works that are to be performed or displayed in public without the necessary authorization of the copyright owner or owners." Law 44 of 1993 provides: "Article 54. The law enforcement authorities shall put a stop to the illegal activity by means of: 1. Suspension of the infringing activity; 2. seizure of illegal copies, moulds, plates, printing blocks, negatives, carrier media, tapes, covers, diskettes, telecommunication equipment, machinery and other elements intended for the production or reproduction of illegal copies or their marketing; 3. immediate closure of the establishment, if the premises concerned are open to the public, and suspension or cancellation of the operating licence." Law 44 of 1993 provides: "Article 55. Impounded publications, copies, reproductions, moulds, plates, printing blocks, negatives, tapes, covers or labels shall be submitted for judicial inspection with the assistance of the expert, and once they have been shown by these means to be illegal, shall be destroyed by the criminal investigation authorities, in the presence of the Court officer, and with notification to the defence and the party claiming damages." Similarly, Law 44 of 1993 provides as follows: "Article 56. Impounded goods intended directly or indirectly for the production, reproduction, distribution, transport or marketing of illegal copies shall be attached or seized ex officio, and following valuation, those that are not to be destroyed shall be awarded under the adverse judgement to the parties injured by the punishable act, by way of damages, or shall be put up for auction for that purpose." The Code of Criminal Procedure provides as follows: "Article 52. Seizure and attachment of goods. In the decision imposing the impoundment measure, or subsequently, the prosecutor or the court shall order the seizure and preventive attachment of goods that are the property of the accused, in a quantity deemed sufficient to guarantee payment for the injury caused, and shall appoint a custodian." (…) "If no goods are specifically known to exist, or the attached goods are not sufficient in quantity, the party claiming damages may report the existence of goods at any time and the court officer shall order the seizure and attachment in the amount deemed necessary, subject to deposit of a security. The security shall be cancelled once the claimant pays the value of the injury caused by the precautionary measures, or remits the monetary worth of the security ordered by the court or that of the said injury, whichever amount is less." (…) The new Code of Criminal Procedure (Law 600 of 2000), which will enter into force on 25 July 2001, provides as follows in this connection: "Article 60. Seizure and attachment of goods. At the time of the decision in which an impoundment measure is ordered, or subsequently, the court officer shall order the seizure and attachment of goods that are the property of the accused. In the event that it is not necessary to resolve the legal situation, the court officer, subsequent to the laying of charges (vinculación), shall ex officio or at the request of the complaining party order the seizure and attachment of goods owned by the accused when the evidence referred to in Article 356 of this Code is taken in the proceedings. Seizure and attachment of the goods shall be ordered in an amount sufficient to guarantee payment for the injury caused, subject to the requirement of lodging a security in accordance with the rules laid down in the Code of Civil Procedure. This decision shall take the form of a writ of enforcement. Both the application and the order to impose and implement substantive precautionary measures shall be treated as confidential until they are implemented and give rise to the opening of a record separate from the main proceedings. "Once the seizure and attachment has been ordered, the court officer shall appoint a custodian and conduct the subsequent procedure in accordance with the relevant rules contained in the Code of Civil Procedure. Where the measures affect immovable property held or occupied by the accused, it shall be left in his possession by way of free security, subject to his undertaking to surrender it to the custodian or to any party specified by the court officer if an adverse ruling is issued against him. A decision to revoke precautionary measures is appealable delayed effect. Paragraph. In proceedings where the injured parties are minors or persons lacking legal capacity, the public prosecutor may request the seizure and attachment of goods belonging to the accused under the conditions set out earlier in this Article, except for the obligation to provide security." Precautionary measures of an evidentiary nature, concerned with the need to preserve evidence that may be destroyed or simply disappear, would under Colombian civil procedural law be covered by the possibility of requesting and examining advance evidence, as regulated by Articles 294 et seq. of the Code of Civil Procedure, including the evidence referred to in Article 300 set out below. In this connection, the Code of Civil Procedure provides as follows: "Article 300. Amendment. D.E. 2282/89, Article 1, paragraph 131. Judicial examinations and expert appraisals. With or without personal service to the opposing party, a request may be made for the production of advance evidence through the judicial examination of persons, places, objects or documents that are to be the subject of proceedings, where a well-founded fear exists that the passage of time may alter their status or make it difficult to identify them." Pursuant to Articles 568, 581 and 597 of the Commercial Code, taken together with Articles 245, 246, 247, 248 and 249 of Decision 486 of the Commission of the Cartagena Agreement, the owner or licensee of a patent, utility model, industrial design, mark, logo, appellation of origin, trade name or commercial sign may request the competent courts to impose the precautionary measures necessary to protect their industrial property rights, whenever such rights are usurped or infringed. Such precautionary measures, in accordance with the above-mentioned Article 568, may involve requiring infringers to provide security as a guarantee for refraining from performance of the acts alleged against them, seizure of articles manufactured in violation of the industrial property right and prohibition on advertising them, attachment of machinery or materials used to manufacture the articles infringing the industrial property right, or any other equivalent measure. The precautionary measures provided for in Articles 678, 681, 682 and 690 of the Code of Civil Procedure include seizure and attachment of goods, whether or not subject to registration, entry of the claim in the official list and seizure and attachment of funds, among other things. The above-mentioned measures may also be requested in the course of proceedings brought before the competent courts or the Supervisory Authority for Industry and Trade on the grounds of unfair competition or infringement of industrial property rights.

The Code of Civil Procedure contains the following provisions on this subject: "Article 327. Amendment. D.E. 2282/89 Article 1, paragraph 154. Implementation and notification of precautionary measures. Precautionary measures shall be implemented immediately, prior to notification to the opposing party of the order by which they are imposed. If they were imposed prior to the proceedings, the party concerned shall be notified on the day on which he/she appears in the proceedings or acts in them or signs the appropriate submission." "Letters and documents for implementation of the above-mentioned measures shall be sent to the interested party only following notification of the order by which the claim was allowed or the writ of execution was issued." Article 690. Amendment. D.E. 2282/89, Article 1, paragraph 346. Precautionary measures in ordinary proceedings. The rules set out below shall be applied in ordinary proceedings. 1. In the order allowing a claim which deals with title or another independent right in rem over movable or immovable property, either directly or as a consequence of a separate claim or incidentally to such claim, or with a comprehensive group of assets, de facto or de jure, at the request of the plaintiff, the court shall order the following precautionary measures: (…) (b) Attachment of movable property, appointment of a custodian and indication of the date and time of the procedure, which may be conducted prior to notification to the respondent of the order allowing the claim if so requested by the plaintiff, who in order to have the measure imposed shall furnish a security to guarantee any damage that might be caused thereby". (No added emphasis in the text)

b) Mesures administratives

According to Administrative Instruction 0022 of 1998 of the National Taxation and Customs Directorate (DIAN), goods for which it is possible to apply for the suspension by the customs authorities of the release into free circulation are goods protected by copyright and related rights, in particular cassettes and compact discs, and phonograms, videograms, software and cinematographic works in general. This procedure is not applicable to the entry of goods which does not constitute an international trade transaction (e.g. passengers' personal luggage). Pursuant to the right of importation recognized in Article 13, subparagraph (d), of Andean Decision 351 of 1993, a copyright owner has the right to prevent the importation into the territory of any member country of the Andean Community of copies made without the authorization of the right holder. Conversely, it is not possible to oppose the importation of copies that have been reproduced in another country under an authorization from the right holder. The procedure enshrined in the above-mentioned administrative instruction is applicable to both import and export transactions.

When the customs authority, in the exercise of its functions, finds goods that are the subject of a complaint or reliable evidence of pirating, these facts shall be brought to the attention of the State prosecuting authority in accordance with the following procedures: At the place of arrival: Cargo consisting of goods protected by copyright and related rights, in particular cassettes, compact discs and, more generally speaking, phonograms, videograms (software) and cinematographic works, shall be considered to be at high risk for the purposes of paragraph 3 of Administrative Order 001 of 1992. In such cases, account shall be taken of the status of importers by determining whether they are firms with standing in the sector or whether they are recognized as regular customs users, in the case of legal persons. In addition, where a formal complaint has been made that the goods are pirated or there is evidence of that fact, they shall be detained as a precautionary measure with a view to placing them at the disposal of the State prosecuting authority. In such cases, the official shall draw up an official record of the facts, specifying that the goods have been placed at the disposal of the State prosecuting authority. In the customs warehouse: At the time of receipt of the import declaration in the customs warehouse or the Customs Administration, as the case may be, and before it is stored in the computerized customs records, a request will be made for the presentation, in addition to the documents referred to in Article 32 of Decree 1909 of 1992, of the authorization of the copyright owner or of the document establishing the legitimacy of the goods' origin. In the event of failure to present such documentation, or if it is alleged that these requirements have not been fulfilled in the country of purchase, the goods will be detained as a precautionary measure, with a view to placing them at the disposal of the State prosecuting authority. Where the warehouse is an approved auxiliary warehouse, the Customs Administration or the Taxation and Customs Directorate shall be informed, if possible by telephone or by fax, for the purpose of effecting detention of the goods. In such cases, the import declaration shall not be stored in the computer records and the official who detains the goods shall be required to draw up an official record of the fact, indicating that the goods have been placed at the disposal of the State prosecuting authority. Where a complaint has been made that the goods are pirated or there is presumptive evidence that this is so, they shall be detained as a precautionary measure and placed at the disposal of the State prosecuting authority. In such cases, the area official of the Customs Administration or the Taxation and Customs Directorate shall draw up an official record of the facts, specifying that the goods have been placed at the disposal of the State prosecuting authority. In the context of inspection operations: In the course of inspection operations, including customs transit inspections, the prosecuting authority shall also be informed of the seizure of goods of foreign origin which, in addition to the grounds for such seizure, are presumed or have been reported to be pirated. In such cases, the process of definition of the legal situation will continue until it is concluded. Where goods have been disembargoed before the date of issue of this instruction, it will be noted in the subsequent inspection process that the Andean declaration of value included the value of licence fees and charges, i.e. royalties payable on importation, and that in the final analysis they form part of the customs value declared as the basis of assessment. Destruction of impounded goods: Once the corresponding administrative ruling has been made final, the goods referred to in this instruction, whether abandoned or impounded, will be destroyed if there is evidence of their being pirated. The foregoing means that no sale, donation or assignment of this class of goods is possible, not only because of the very nature of pirated merchandise, but also because this measure is consistent with the provisions of Article 55 of Law 44/93.

Note: The private sector associations have been consulted with a view to obtaining this information.

The customs authority is obliged to carry out the aforementioned procedure when, in the exercise of its functions, it comes across goods that are the subject of a complaint or reliable evidence of pirating. The procedure under Administrative Instruction 002 of 1998 provides for action to be taken ex officio by the customs authorities, as well as for cases where a complaint has been made about the infringing nature of the goods.

In accordance with the procedure referred to above, infringing goods may be detained in order to be placed at the disposal of the State prosecuting authority and, in the case of goods that have been abandoned or impounded, once the corresponding administrative decision has become final, they may be destroyed if there is evidence that they are counterfeit.

At the investigative stage of pre-trial proceedings, Article 67 of the Code of Criminal Procedure provides that it is the responsibility of the State prosecuting authority to direct, conduct and coordinate the criminal investigation. This provision is taken up in Article 26 of the new Code of Criminal Procedure (Law 600 of 2000) which will come into effect on 25 July 2001. It should be pointed out that a specialized unit within the State prosecuting authority deals with offences against copyright and related rights. At the trial stage, the municipal criminal courts have original jurisdiction in copyright infringement cases, where the amount does not exceed 50 months of the minimum wage. The circuit criminal courts hear such cases at second instance. In copyright infringement cases where the amount involved is higher than 50 months of the minimum wage, jurisdiction at first instance is exercised by the circuit criminal courts and at second instance by the higher district courts. The Criminal Division of the Supreme Court of Justice has jurisdiction over special appeal proceedings on points of law, in respect of judgements delivered in copyright infringement proceedings. Jurisdiction at the trial stage is exercised by the circuit courts at first instance, the higher district courts at second instance and the Supreme Court of Justice in appeal proceedings to set aside a judgement.

Infringements of copyright and related rights are sanctioned under Articles 51 and 52 of Law 44 of 1993, which read as follows: "Article 51. A prison sentence of two (2) to five (5) years and a fine of five (5) to twenty (20) monthly units of the minimum statutory wage shall be incurred by: 1. Anyone who publishes an unpublished literary or artistic work, or part thereof, by any means, without the prior express authorization of the right holder. 2. Anyone who enters a literary, scientific or artistic work in the copyright register, in the name of a person other than the true author, or with altered or deleted title, or with altered, distorted, modified or mutilated text, or with falsification of the name of the publisher or the producer of phonograms, cinematographic works, videograms or software. 3. Anyone who in any manner or by any means reproduces, disposes of, abridges, mutilates or transforms a literary, scientific or artistic work, without the prior express authorization of its owner. 4. Anyone who reproduces phonograms, videograms, software and cinematographic works without the prior express authorization of the owner, or transports, stores, preserves, distributes, imports, sells, offers or purchases such reproductions for sale or distribution, or makes them available for any purpose. Paragraph. If the physical support, cover, case or presentation of the literary work, phonogram, videogram, software or cinematographic work displays the name, business name, logo or distinctive sign of the legitimate right holder, the above-mentioned penalties shall be increased by up to one half. "Article 52. A prison sentence of one (1) to four (4) years and a fine of three (3) to ten (10) monthly units of the minimum statutory wage shall be incurred by: 1. Anyone who publicly performs or exhibits theatrical or musical works, phonograms, videograms, cinematographic works or any other literary or artistic work, without the prior express authorization of the owner of the corresponding rights. 2. Anyone who rents out or in any other way markets phonograms, videograms, software or cinematographic works without the prior express authorization of the owner of the corresponding rights. 3. Anyone who fixes, reproduces or markets public performances of theatrical or musical works, without the prior express authorization of the owner of the corresponding rights. 4. Anyone who arranges or effects the communication, fixation, performance, display, marketing, dissemination or distribution or representation of a work, or in any manner or by any means, known or knowable, uses a work without the prior express authorization of its owner. 5. Anyone who makes false statements intended directly or indirectly for the payment or distribution of the author's economic rights, altering the data relating to public attendance, class, price and number of tickets sold for a show or meeting, or the number of tickets distributed free of charge, in such a way as might be prejudicial to the author. 6. Anyone who makes false statements intended directly or indirectly for the payment or distribution of the author's economic rights, altering the number of copies produced, sold or distributed free of charge, in such a way as might be prejudicial to the author. 7. Anyone who makes false statements intended for the distribution of the author's economic rights, omitting, substituting or wrongfully inserting data relating to the respective works. 8. Anyone who performs acts aimed at misstating the actual revenue from a show or meeting. 9. Anyone who retransmits, fixes, reproduces or publicizes, by any sound or audiovisual means, the broadcasts of broadcasting organizations, without the express prior authorization of the owner. 10. Anyone who receives, disseminates or distributes subscription television broadcasts by any means, without the prior express authorization of the owner. Paragraph. In cases concerned with the offences covered by this Article, the criminal action shall be withdrawn by the aggrieved party when the defendant pays compensation for the injury caused before judgement is pronounced at first instance." The new Criminal Code (Law 599 of 2000), which will enter into force on 25 July 2001, provides as follows in this connection: "Article 270. Violation of an author's non-pecuniary rights. Liability to a prison sentence of two (2) to five (5) years and to a fine of twenty (20) to two hundred (200) monthly units of the statutory minimum wage in force shall be incurred by anyone who: 1. Publishes, fully or in part, without the prior express authorization of the right holder, an unpublished literary, artistic, scientific, cinematographic or audiovisual work, phonogram, computer program or software. 2. Makes an entry in the copyright register in the name of a person other than the true author, or with altered or deleted title, or with altered, distorted, modified or mutilated text, or with falsification of the name of the publisher or producer of a literary, artistic, scientific or audiovisual work, phonogram, computer program or software. 3. Summarizes, mutilates or transforms, by any means or procedure, without the prior express authorization of the owner, a literary, artistic, scientific or audiovisual work, phonogram, computer program or computer software. Paragraph. If the physical support, cover, case or presentation of a literary, artistic or scientific work, phonogram, videogram, computer program, software or cinematographic work displays the name, business name, logo or distinctive sign of the legitimate right holder, in cases where the title or text of the work is changed, deleted, altered, modified or mutilated, the above-mentioned penalties shall be increased by up to one half." Similarly, the new Criminal Code (Law 599 of 2000), which will enter into force on 25 July 2001, provides as follows: "Article 271. Fraudulent exercise of an author's pecuniary rights. Liability to a prison sentence of two (2) to five (5) years and a fine of between twenty (20) and one thousand (1,000) monthly units of the statutory minimum wage in force, shall be incurred by anyone who, subject to the exceptions provided for by law: 1. By any means or procedure, without the prior express authorization of the owner, reproduces a literary, scientific, artistic or cinematographic work, phonogram, videogram, software or computer program, or transports, stores, preserves, distributes, imports, sells, offers or purchases such reproductions for sale or distribution, or makes them available for any other purpose. 2. Publicly performs or exhibits theatrical or musical works, phonograms, videograms, cinematographic works or any other literary or artistic work, without the prior express authorization of the owner of the corresponding rights. 3. Rents out or in any other way markets phonograms, videograms, computer programs, software or cinematographic works without the prior express authorization of the holder of the corresponding rights. 4. Fixes, reproduces or markets public performances of theatrical or musical works, without the prior express authorization of the owner of the corresponding rights. 5. Arranges, effects or utilizes, by any means or procedure, the communication, fixation, performance, display, marketing, dissemination or distribution and representation of any of the works protected under this title, without the prior express authorization of the owner. 6. Retransmits, fixes, reproduces or publicizes, by any sound or audiovisual means, without the prior express authorization of the owner, the broadcasts of broadcasting organizations. 7. Receives, disseminates or distributes subscription television broadcasts, by any means, without the prior express authorization of the owner. Paragraph. If the conduct referred to in paragraphs 1, 3 and 4 of this Article involves no more than (100) units of the work, the penalty shall be reduced by up to one half." The new Criminal Code (Law 599 of 2000), which will enter into force on 25 July 2001, also provides as follows: "Article 272. Violation of the mechanisms for the protection of an author's pecuniary rights and other types of fraud. A fine shall be incurred by anyone who: 1. Defeats or evades the technological measures adopted to restrict unauthorized use. 2. Expunges or alters information essential to the electronic management of rights, or imports, distributes or communicates copies with the expunged or altered information. 3. Manufactures, imports, sells, rents out or in any way distributes to the public a device or system that can be used to decode an encoded programme-carrying satellite signal without authorization from the legitimate distributor of that signal, or in any way to elude, avoid, deactivate or put out of commission a device or system enabling the right holders to monitor the use of their works or productions, or to impede or restrict any unauthorized use thereof. 4. Submits declarations or information intended directly or indirectly for the payment, collection, assessment or distribution of an author's economic rights or related rights, and alters or falsifies, by any means or procedure, the data required for that purpose." The Criminal Code contains the following provisions: Article 217 provides for one to five year prison sentences and fines to sanction the violation of industrial property rights in an officially used mark, where such mark is falsified or applied to a product other than the one for which it was intended. Article 238 establishes prison sentences and fines for anyone who uses, publishes or discloses a scientific invention, process or industrial application which have come to their knowledge by reason of their responsibilities, trade or profession and which are meant to remain confidential, for which reason any revelation of such information by the authorities could also render them liable to criminal proceedings if the said conduct is classified as an offence. Article 236 states that anyone who fraudulently uses a legally protected industrial, commercial or agricultural name, sign, mark, emblem, design, label, patent or model shall be liable to imprisonment for six (6) months to three (3) years and a fine of between 2,000 and 100,000 pesos. Finally, Article 237 penalizes the wrongful use of patents, stipulating that anyone who manufacturers a product without authorization from the owner of the legally protected right, or uses a patented medium or process without proper authorization, shall be liable to imprisonment for six (6) months to four (4) years and a fine of between 20,000 and 500,000 pesos. The same penalties are applicable to anyone who brings into or takes out of the country, exhibits, offers for sale or disposes of a product manufactured in breach of a patent.

Criminal proceedings are brought before the State prosecuting authority, the body responsible for conducting pre-trial proceedings at the investigative stage. In cases of infringement of copyright and related rights, the State prosecuting authority may act ex officio or in response to a complaint ex parte. The rules of criminal procedure contain no requirement that a complaint be lodged in respect of offences against the economic and social order (which include counterfeiting of marks and patents, unlawful use of patents and violation of industrial secrets); hence the investigation always proceeds ex officio.

Article 59 of Law 44 of 1993 provides that, in cases of infringement of copyright and related rights, the criminal proceedings are public, which means that any person who has knowledge of a criminal offence in this area may bring a criminal action before the competent authorities. Private owners of industrial property rights who are injured by any conduct classified as an offence are entitled to initiate the corresponding criminal proceedings.

Infringements of copyright and related rights, as defined in Article 51 of Law 44 of 1993, attract a fine of five to 20 monthly units of the minimum statutory wage, in addition to a custodial sentence. Article 52 likewise provides for a fine of three to ten months of the minimum statutory wage, in addition to a custodial sentence. Seizure, forfeiture and destruction of infringing goods and material and implements for their production Law 44 of 1993 provides as follows: "Article 55. Impounded publications, copies, reproductions, moulds, plates, printing blocks, negatives, tapes, covers or labels shall be subject to judicial inspection with the assistance of the expert, and once shown to be illegal by this means, shall be destroyed by the criminal investigation authorities in the presence of the court officer, with notification to the defence and the party claiming damages." "Article 56. Impounded goods intended directly or indirectly for the production, reproduction, distribution, transport or marketing of illegal copies shall be attached or seized ex officio, and following valuation, those that are not to be destroyed shall be awarded under the adverse judgement to the parties injured by the punishable act, by way of damages, or shall be put up for auction for that purpose." Other remedies It is possible, in criminal proceedings, to claim and obtain compensation for economic damage caused by a criminal offence. For that purpose, the owner of the rights concerned, or the management company by which he/she is represented, must bring criminal indemnification proceedings and submit the relevant claim. See the replies to questions 5 and 20 above.

[Answer 5: Injunctions In the context of proceedings concerned with copyright and related rights, the court may, in addition to other measures, order penalization of the infringing activity. - Legislation on unfair competition Inasmuch as violation of industrial property rights may involve misleading acts , deception and/or exploitation of the reputation of others , which constitute unfair competition under the terms of Law 256 of 1996, such violation is punishable by means of the corresponding remedies provided for in the above-mentioned law. Article 20 of Law 256 of 1996 regulates actions that may be brought (before the competent courts or the Supervisory Authority for Industry and Trade, in accordance with the provisions of Articles 143 and 144 of Law 448 of 1998) as a result of conduct constituting unfair competition. The law states that such actions may be of two kinds: declaratory actions to obtain a conviction, involving a request that the acts performed be declared unlawful by the court and that the infringer consequently be ordered to terminate the effects produced by those acts and provide compensation for the injury caused; and preventive actions or proceedings for interdiction, whereby the court is requested to prevent the performance of an act of unfair competition that has not yet been carried out or to prohibit the act even though it has not yet caused any injury. - Prohibition on the use of a mark, logo, trade name or commercial sign Under the terms of Articles 607 and 609 of the Commercial Code, a party injured by the use of a mark, logo, trade name or commercial sign, may apply to the circuit civil courts to prevent such use and claim the corresponding damages in an action which, if successful, entails the relevant prohibition of use and order to pay damages. Damages, including recovery of profits, and expenses, including attorney's fees The claim for damages may form part of a declaratory civil action, pursuant to Articles 242 and 243 of Law 23 of 1982. Although Article 45 of the TRIPS Agreement is covered by Section 2 ("Civil and administrative procedures and remedies"), it should be pointed out that the criminal law also provides for the possibility of obtaining compensation for damage caused by an infringement of copyright, which is classified as an offence. Indeed, Article 13 of the Code of Criminal Procedure establishes the restoration of rights as one of its guiding principles. Under this Article, the judicial authorities shall, wherever possible, adopt the measures necessary to ensure cessation of the effects produced by perpetration of the punishable act and a return to the status quo ante, so that the violated rights are restored. Andean Decision 351 of 1993 provides as follows: "Article 57. The competent national authority may likewise order the following: (a) Payment to the owner of the infringed rights of adequate compensation or indemnification for damage and injury sustained as a result of the infringement". The same Andean Decision 351 of 1993 also provides: "Article 57. The competent national authority may likewise order the following:" (…) "(b) That the infringer shall bear the cost of the proceedings incurred by the owner of the infringed right". At the same time, the Code of Civil Procedure provides: "Article 304. Amended. D.E. 2282/89, Article 1 paragraph 134. Content of the judgement. (…) The part of the judgement containing the verdict shall be placed under the heading "Administering justice on behalf of the Republic of Colombia and by authority of the law"; it shall contain specific and clear decisions on each of the claims made, any pleas which call for decision, the costs and damages to be borne by the parties and their authorized representatives, and other subjects on which a decision is required under the terms of this Code." (No added emphasis in the text). Article 571 of the Commercial Code, in accordance with the provisions of Articles 238, 239, 240, 241, 242, 243 and 244 of Title XV of Decision 486 of the Commission of the Cartagena Agreement – "On Actions for Infringement of Rights - provides that the owner or licensee of a patent, utility model, industrial design, mark, logo, trade name or commercial sign may take action for damages resulting from their usurpation without the need to request the corresponding precautionary measures, or in cases where such measures have been refused. Moreover, the costs relating to the proceedings (stamp duties, fees for officers of the court, formalities and legal agency ) must be ordered ex officio by the court against the losing party. Destruction or other disposal of infringing goods and materials/implements for their production Law 44 of 1993 provides as follows: "Article 55. Impounded publications, copies, reproductions, moulds, plates, printing blocks, negatives, tapes, covers or labels shall be subject to judicial inspection with the assistance of the expert, and once shown to be illegal by this means, shall be destroyed by the criminal investigation authorities, in the presence of the court officer, with notification to the defence and the party claiming damages." "Article 56. Impounded goods intended directly or indirectly for the production, reproduction, distribution, transport or marketing of illegal copies shall be attached or seized ex officio, and following valuation, those that are not to be destroyed shall be awarded under the adverse judgement to the parties injured by the punishable act, by way of damages, or shall be put up for auction for that purpose." Bearing in mind that there is no exhaustive list of the precautionary measures that may be requested in the course of civil proceedings, application may be made for the implementation of precautionary measures which, while not expressly provided for in civil legislation, are not excluded thereby. They include the following: Confiscation of the implements and effects used to commit a fraudulent punishable act or derived from its perpetration and not available on the open market, which shall be placed under the control of the State prosecuting authority or the entity appointed by the latter, unless the law requires that they be destroyed in accordance with the provisions of Article 338 of the Code of Criminal Procedure. The new Code of Criminal Procedures provides for the confiscation of products or merchandise, publications, copies, reproductions, moulds, plates, printing blocks, negatives, tapes, covers or labels seized in the investigation of intellectual property offences and, provided that they are shown to be illegal, for their destruction in accordance with the provisions of Article 67. Confiscation of substances, appliances and other objects intended for the performance of acts connected with the description of goods with distinctive marks which are misleading in respect of their origin or content , in accordance with the provisions of Article 43 of Decree 1355 of 1970 and Article 42 which provides that, if the act is performed by traders personally or through the action of persons in establishments owned by them, the closure of the establishment concerned for up to six months shall be ordered. Confiscation of material intended for the perpetration of the infringement, or which are the subject of the infringement, may be requested in proceedings brought before the circuit civil courts and the Supervisory Authority for Industry and Trade, on the grounds that, although provision is made for this measure under criminal and police legislation, its application may be requested in civil proceedings since no exhaustive list exists of the precautionary measures which may be requested.]

[Answer 20: At the investigative stage of pre-trial proceedings, Article 67 of the Code of Criminal Procedure provides that it is the responsibility of the State prosecuting authority to direct, conduct and coordinate the criminal investigation. This provision is taken up in Article 26 of the new Code of Criminal Procedure (Law 600 of 2000) which will come into effect on 25 July 2001. It should be pointed out that a specialized unit within the State prosecuting authority deals with offences against copyright and related rights. At the trial stage, the municipal criminal courts have original jurisdiction in copyright infringement cases, where the amount does not exceed 50 months of the minimum wage. The circuit criminal courts hear such cases at second instance. In copyright infringement cases where the amount involved is higher than 50 months of the minimum wage, jurisdiction at first instance is exercised by the circuit criminal courts and at second instance by the higher district courts. The Criminal Division of the Supreme Court of Justice has jurisdiction over special appeal proceedings on points of law, in respect of judgements delivered in copyright infringement proceedings. Jurisdiction at the trial stage is exercised by the circuit courts at first instance, the higher district courts at second instance and the Supreme Court of Justice in appeal proceedings to set aside a judgement.]

Note: The private sector associations have been consulted with a view to obtaining this information.