Copy-Wrong

Andres Izquierdo takes a look at the Colombian Audiovisual Market in the New Digital Arena

It’s a great time to be in music or film. Artists and filmmakers will be able to breathe easier knowing their creations are protected. Colombia is in the process of updating its intellectual property norms and generating new and more varied spaces for the exhibition and distribution of audiovisual content.

The intellectual property norms in Colombia, particularly on copyright, are in the process of being updated as a result of the recent Free Trade Agreement signed with the US. The implementation of these norms will bring greater control over the use of online content, restrictions on the re-transmission of television signals over the internet and more active participation of internet service providers (ISPs) in removing contents that are in breach of copyright laws. Further, more stringent standards in the civil, criminal and administrative penalties will combat piracy.

But Colombian copyright law must evolve to keep up with the technological advances and new communications. It is also necessary to update and adapt the contracts that govern today’s audiovisual sector. Contracts and agreements in the field of copyright transfer, film synchronization, product placement and publicity rights must be enshrined in broader and more comprehensive way for new digital media formats such as Digital Terrestrial Television (DTT), Video On Demand or IPTV.

With the recent introduction of DTT to Colombia and a new film law passed in Colombian Congress in 2012, there will be a change in the relationships between media producers (filmmakers, television producers, musicians, and web producers) and TV channels or distributors/exhibitors. Given the large advertising demand due to more TV channels and new exhibition formats entering the market, media producers will need to maximize the use of their content while maintaining independence to negotiate with distributors to suit their interests.

For example, if the goal of a media producer is to license their content for various DTT channels in Latin America, he or she should develop contractual relationships which are not limited only to one territory or a specific channel. The producer must develop contracts with writers, musicians, directors and actors, and those contracts should include clauses broad enough to be able to use the media content in different countries, different formats (TDT, Pay per view, Video on Demand) and for longer time frames.

In the same sense, a contract of publicity rights with a model or an actor must be open enough to allow its use not only in Colombia, not only for television, and not just for a certain time. The new contracts and agreements should contain clauses allowing the use in various territories, in various formats of media communications, and for longer times than those currently used.

Also, the producer who looks to broadly license their content might consider the use of non exclusivity clauses in order to avoid any limitations in the distribution of content. Given the high demand for content that DTT channels generate – as well for the new worldwide video on demand exhibition formats for filmmakers – the producer must establish legal relationships that will grant them the freedom to market their content not only in Colombia, but also in other Latin American markets.

In addition, the producer should not only seek to distribute content on television or in cinemas, but also on the new formats such as Netflix, Hulu or HBO.

It is high time Colombia updated its current copyright system and reshaped traditional contractual relationships to align with the new modes of distribution of audiovisual content in the digital world.

Andres Izquierdo and Lawyers are experts in Intellectual Property and Business Law with over 10 years experience providing consultation to Fortune 500 companies, Startups, Technology Companies and Nonprofit Organizations in Colombia, Venezuela, Ecuador, Peru, the United States and Italy.