By: Jose Alejandro Santana
Introduction
The advances in technology have helped to promote the creation of intellectual works by mankind, and at the same time have become a threat to copyright and its mechanisms for protection.
A proof of this is one of the most used technological and telecommunications media, which has allowed communications between PCs anywhere on the planet: Internet. Although authors have benefited of this global network with the spread of their intellectual works, this has also contributed to daily infringements against copyrights.
Nevertheless, an original work on Internet is not immune from the protection of laws for the appropriate legal protection, despite the dematerialization and digitalization of works, elements that make easier the copyright infringements in cyberspace.
Given this situation, several countries have proposed initiatives to improve the prosecution and law enforcement of digital infringement of copyrighted works. These proposals have generated controversy worldwide, since its implementation would restrain the rights of millions of network users, who have the Internet as a communication channel for cultural and human development.
Before pointing out how copyrighted works on Internet would be protected in the Dominican Republic, it is necessary to mark certain aspects of local laws focused on copyright protection.
Dominican Judicial and Administrative Copyright Legislation
In the Dominican Republic, the copyright is recognized in Articles 52 and 64 of the Constitution, dated January 26, 2010, which also establishes the obligation of State to protect the moral and economic interests on the works of authors.
On a more specific level, the Copyright Law, No. 65, dated August 21, 2000, and its amendments, essentially establishes a number of provisions in favor of authors and a system for the effective protection of their rights in administrative, civil and criminal forums, as a response to the constitutional and international conventions commitments.
In Civil Law, there are a series of actions for the enforcement of copyright and for the compensation of the economics and non-economics rights of authors caused by damages of copyright infringements. These actions are the civil liability claims, financial compensations for moral and material damages caused by the violation of law, suspension and/or termination of the unlawful activity, judicial inspection procedures, confiscation, the latter can be adopted prior a trial. The copyright holder can request the adoption of precautionary measures in order to ensure effective judicial protection.
On the other hand, criminal law complements the actions for judicial protection of copyright, which guarantees a real compensation for damage against the moral rights of the copyright holder. This is achieved with the imposition of penalties and sanctions provided by law for willful crimes, since the agent must be aware of the committed illicit act. This last aspect differentiates the criminal law of civil law. It is also possible to request precautionary measures, such as the confiscation of the suspected infringing goods, materials and accessories used for the commission of the crime and any assets and documentary evidence related with the act. An order of confiscation by the State, of any assets related to the infringing activity, forfeiture and destruction of all pirated goods and materials and supplies used in the creation of the illegal merchandise is also available.
Other laws refer to the penalties specified by law No. 65-00, to punish those who commit crimes against copyrighted works. Such is the case of Law No. 53-07 of High Tech Crimes, dated April 23, 2007, which establishes a protection for systems and users of information and communication technologies. Its article 25 affirms that any infringement committed through the use of electronic, informative, telematic or telecommunication systems, will be sanctioned with the penalties ordered by the Copyright Act. This law has the support of the Crimes Research and High Technology Crimes Department (“DICAT”, for its Spanish acronym), created to conduct investigations and submit to the criminal justice those who infringe law No. 53-07.
In another aspect, the role of the State is, equally, the protection of intellectual property rights in administrative forums. In accordance with our local legislation, this role is played by the National Copyright Office (ONDA, for its Spanish acronym), competent entity with authority across the country in charge of administrative surveillance and enforcement of copyright and related rights. ONDA resolves, in first instance of administrative proceedings, those actions that are under its jurisdiction, by a complaint filed by a particular or by the Public Ministry.
ONDA can dictate and carry out inspections, preventive or precautionary measures, surveillance and inspection on activities in which copyrights are employed; can emit a nonbinding technical report in civil and criminal cases, related to the ownership of copyrights or related rights. ONDA, through a conciliation process, settles disputes rose from copyright infringements, quickly and expeditiously.
Foreign Protection of Internet Copyright
The WIPO Internet Treaties, namely the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), tried to adapt copyright law to the challenges of the digital age and the impact of information and communication technologies in the creation and use of works protected by copyright.
The treaties clarify two main aspects: first, the traditional right of reproduction continues to apply in the digital environment, and second, the right holders can verify if, how, when and where different consumers have online access to their creations.
These treaties were signed by many countries, some of which have accomplished with the obligation to ensure the protection of copyright in the digital environment, in particular, on the Internet.
Among these is the United States, in which the Copyright Act and the Digital Millennium Copyright Act, together have managed to handle copyright infringements occurred in that country, imposing fines and imprisonment, the establishment of a notice and takedown procedure, in which an Internet Service Provider can remove an infringing material found on a website; the scope of responsibility of these actors is regulated, and precautionary measures aimed at protecting the right can be obtained.
In U.S. and Europe, in addition to the existing laws, more aggressive policies regarding the protection of Internet copyright were tried to be created, including the once controversial “Stop Online Piracy Act” (SOPA), the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” (PROTECT IP or PIPA), the “Online Protection & Enforcement of Digital Trade Act” (OPEN) and the “Anti-Counterfeiting Trade Agreement” (ACTA).
The implementation of these acts would have represented a limitation of freedom of speech of users and surveillance of their activities, there would have been removals of any type of information from Internet, and restrictions of a large percentage of network usage. In consequence, these proposals have been, to dated, suspended or abandoned.
In Europe, the legislation have struggled to unify the system, and due to the European Union Parliament directives that deal specifically with the protection of copyright in the digital environment in member countries, including Spain, its laws concerning the copyright protection have become to be similar as those from the U.S. The Internet Service Providers are allowed to remove any counterfeit and pirated work and the committees can monitor the activities that infringe copyrights.
France had managed to implement a graduated response system, in which if an Internet user committed any copyright infringement, outside the limitations established by law, is notified about the illegality of his/her actions and if the infringement continues, he/she would be prosecuted.
In Latin American countries, such as Chile and Mexico, there was no specific regulation or any proposal concerning the copyright protection on the Internet, and the common law was used to deal with conflicts related to these matters. However, rules that empower the enforcement of copyright protection on the Internet had been proposed.
Possible Actions for the Protection of Internet Copyright in the Dominican Republic
In the Dominican scenario, there are no legal provisions focused specifically on Internet copyright protection. Despite this, rules found in our Constitution, International Conventions and law No. 65-00, compromise the Dominican judicial and legislative authorities to provide to authors an effective protection system if a copyright infringement in cyberspace occurs. Copyright is constantly protected, regardless of the form of expression or communication.
Therefore, from the dispositions found in Dominican laws on copyright, we could infer that a judge may order the removal of any element that violated copyrights found on a website, the offender can be condemned for the damages caused by the infringement, extended in accordance with the level of diffusion in the virtual environment, so the amount would be much higher than in the case of a violation that occurred on a physical medium; the offender could be condemned to prison if the offense on the Internet is serious enough. Furthermore, given the speed of the diffusion of information and protected materials on the Internet, it could be requested to a judge to impose any of the precautionary measures that are applicable to this environment. Those who participate in the execution of the crime, and those who supply services that are used for such execution, may be ordered to provide any relevant information to prevent the violation to continue.
ONDA, as an administrative copyright authority, as happens in France, Spain and Mexico, where there are Internet copyright surveillance administrative entities, could have a more active role in this circumstances, promoting alternatives for a proper and legal use of works protected by copyright, monitors infringing sites to empower the District Attorney to take the proper actions, and implement other functions given by law, in the digital environment.
It is pertinent to remark that in our system, besides ONDA, as the institution in charge of the enforcement of copyright, there are entities like DICAT, high-tech crimes surveillance and investigation units, which together can pursue unlawful copyright acts on the Internet, through mutual cooperation to ease the prosecution against infringements.
In view of the existing regulations regarding the liability of Internet Service Providers in foreign jurisdictions, the Dominican Republic needs to determine the liability rules and management of these actors, whose services contribute to the commission of illegal acts.
Thus, there are legal tools that allow the Dominican author to find protection in the face of a violation of his/her rights on the Internet; while we do not have specific legislation on the matter, law No. 65-00 has essential elements to protect copyright in the virtual space.
Considering the need for an effective judicial and administrative system to achieve Internet copyright protection, it is important to ensure the respect of the users on the cyberspace.
