Colombia - 5-Protection of Property RightsColombia - Property Rights
Real PropertyThe 1991 Constitution explicitly protects individual rights against state actions and upholds the right to private property.
Secured interests in real property, and to a lesser degree movable property, are recognized and generally enforced after the property is properly registered. In terms of protecting third party purchasers, such as one of the cases cited under investment disputes, existing law is inadequate. The concept of a mortgage, trust, deed, and other types of liens exists, as does a reliable system of recording such secured interests. Deeds, however, present some legal risk due to the prevalence of transactions that have never been registered with the Public Instruments Registry.
According to Amnesty International, as of November 2015 eight million hectares had been abandoned or acquired illegally, equivalent to 14 percent of the Colombian territory. The government estimates that approximately 6.5 million hectares of land are affected by violent usurpation. Around 18 percent of land owners do not have clear title. The Colombian government is working to title these plots and has started a formalization program for land restitution.
In the five and a half years that the Law on Victims and Land Restitution has been in force, between 2011 and 2016, the government has received 102,292 applications for restitution, corresponding to 86,638 properties and around 200,000 hectares, of which 5,008 properties have been resolved by judges. In 2016 the Land Restoration Unit (URT), a unit created for only ten years to focus on land restitution for displaced by armed conflict population solved around 15,000 cases. With the entry into force of the peace deal with the FARC, Colombia’s largest rebel group, the Government is confident restitution efforts will be more effective since former violent areas become more accessible and population can start land restitution processes without much fear, although security in those areas remains a latent challenge. Some landowners who received their formal land titles have been threatened by illegal armed groups. Most of the land that needs to be formalized and returned to title owners is located at the south of the country.
The URT’s work is complementary to the work of the National Land Agency which deals with property titles to peasants and minorities communities so they can have access to land and to the formalization of their rights. The Agency was created at the end of 2015 to implement many of the commitments established in the peace deal with the FARC on formalization of rural land and aims to formalize the property of 50,000 Colombian families in 2017.
In March 2017, the Colombia’s Prosecutor’s Office announced the recovery of 277,000 hectares from property of dissidents and ex-combatants of the FARC guerrillas, and from illicit drugs. The area is equivalent to 2,270 square kilometers or an extension almost three times larger than the city of New York (787 square kilometers). Colombia ranked 53 out of 190 economies for ease of registering property, according to the 2017 Doing Business report, the same ranking it received in 2016.
Intellectual Property RightsIn Colombia, the granting, registration, and administration of IPR are carried out by four different government entities. The SIC acts as the Colombian patent and trademark office. The Colombian Agricultural Institute (ICA) is in charge of issuing plant variety protections and data protections for agricultural products. The Ministry of Interior administers copyrights through the National Copyright Directorate (DNDA). The Ministry of Health and Social Protection handles data protection for products registered through the National Food and Drug Institute (INVIMA). While each of these entities experiences significant financial and technical resource constraints, the SIC is well-run and the second fastest office in the world for patent applications. Colombia is subject to Andean Community Decision 486 on trade secret protection, which is fully implemented domestically by the Unfair Competition Law of 1996.
Colombia made no significant changes to its institutional IPR framework in 2016. Decree 1162 of 2010 created the National Intellectual Property Administrative System and the Intersectorial Intellectual Property Commission (CIPI). The CIPI serves at the interagency technical body for IPR issues, but has not issued any recent policy documents. The last comprehensive interagency policy for IPR issues (Conpes 3533) was issued by the National Planning Department in 2008. Colombia’s National Development Plan (NDP) for 2014-2018 contains a requirement to develop an IPR enforcement policy, but Colombia did not publish such a policy in 2016.
The patent regime in Colombia currently provides for a 20-year protection period for patents, a 10-year term for industrial designs, and 20- or 15-year protection for new plant varieties, depending on the species. Colombia has been on the U.S. Trade Representative’s Special 301 Watch List every year since 1991 but is not listed in the notorious markets report. The reports can be found at the U.S. Trade Representative’s Special 301 webpage. Stakeholder submissions for the 2017 Special 301 report prominently cited concerns about Colombia’s regulation of the pharmaceutical sector, including weak patent enforcement and discretion for compulsory licensing.
The CTPA improved standards for the protection and enforcement of a broad range of IPR. Such improvements include state-of-the-art protections for digital products such as software, music, text, and videos; stronger protection for U.S. patents, trademarks, and test data; and prevention of piracy and counterfeiting by criminalizing end-use piracy. Colombia is a member of the Inter-American Convention for Trademark and Commercial Protection. Various procedures associated with industrial property, patent, and trademark registration are available at the Superintendent of Industry and Commerce’s (SIC) “Industrial Property” webpage.
Colombia has outstanding CTPA commitments related to copyright protection. In January 2013, the constitutional court declared Law 1520 of 2012 implementing several CTPA-related commitments (including copyrights, TV programming quotas, and IPR enforcement measures) unconstitutional on procedural grounds. In response, the Santos administration decided to present separate bills to Congress. A subsequent effort to pass TV programming quotas was not approved after four debates in Congress, and shelved by the Santos Administration in June 2015. MINCIT did make progress on copyright protection in 2016, publishing in August a version of the bill for public consultation. Industry stakeholders have noted that it succeeds in introducing the concept of statutory damages for copyright infringement, but falls short in some other areas, failing to compel takedown of online content or protect intermediaries with important “safe harbor” provisions for unintentional copyright infringement. Following the close of public comments in September 2016, Colombia has not moved to introduce the legislation to Congress. Colombia now expects to introduce the copyright bill in 2017.
Absent this and other legislation, Colombia continues to fall short on CTPA commitments. The CTPA deadline to establish copyright liability for circumventing technological protections was May 15, 2013, and the deadline to establish copyright liability for misuse/altering information was November 15, 2014. Colombia has yet to establish additional criminal procedures for counterfeiting, due May 15, 2013, which it plans to address with the copyrights bill or another law that permits changing its penal code. The Internet Service Providers (ISPs) legislation, another CTPA requirement, was due May 15, 2013. A bill was introduced in 2011, but was shelved because it passed only one of the mandatory four debates within the required timeframe.
Colombia did take an important step toward meeting its CTPA obligations in 2016 by finalizing its accession to the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure. The treaty entered into force with respect to Colombia in July 2016. Colombia did not make progress in 2016 on another international agreement that it needs to sign in order to comply with CTPA provisions: the International Union for the Protection of New Varieties of Plants (UPOV 91). Colombia’s constitutional court declared accession to UPOV 91 unconstitutional in December 2012 due to lack of consultation with Afro-Colombian and indigenous communities. Consultations are expected to occur in 2017. Colombia also maintains that the existing Andean Community Decision 345 is in effect and equivalent to UPOV 91.
In terms of investigations, Colombia’s success against counterfeiting and IPR violations remains limited. The Fiscal and Customs Police (POLFA) launched “Plan Choque” in 2014 to collaborate with the National Police on operations, and has begun working more closely with the private sector in recent years. Despite occasional press reports of successful seizures of contraband hard goods (often counterfeit medicines, alcohol, and consumer products such as shoes), such products remain widely available in Colombia’s “San Andresitos” markets. The Colombian Tax and Customs Authority (DIAN) has identified 319 illegal terrestrial entry points on the borders with Venezuela and Ecuador, most of which are difficult to control due to security concerns related to illegal armed groups. A 2015 law increased penalties for those involved in running contraband, but more effective implementation is needed. Colombian law continues to limit the ability of law enforcement (police, customs, and prosecutors) to effectively combat counterfeiting because they do not have ex officio authority to effectively inspect, seize and destroy counterfeit goods, nor an integrated multi-agency system to investigate smugglers and counterfeiters. Enforcement in the digital space remains weak as well.
Regarding responsibility for prosecutions, the specialized IPR unit in the Attorney General’s office (the UNPIT) was abolished in a 2014 restructuring. It remains the case that criminal IPR cases are generally assigned randomly to non-specialized national prosecutors. The two exceptions to assign a case to an attorney from the old UNPIT unit are when a major crime organization is involved or cases of nationwide scope.
Resources for Rights Holders
U.S. Embassy Bogotá
Carrera 45 #22B-45
Phone: 571 275-2000
American Chamber of Commerce in Colombia (AmCham)
Council of American Companies in Colombia (CEAC)
U.S. Embassy in Colombia Local attorneys list
For additional information about treaty obligations and points of contact at local IP offices, please see WIPO’s country profiles. Prepared by our U.S. Embassies abroad. With its network of 108 offices across the United States and in more than 75 countries, the U.S. Commercial Service of the U.S. Department of Commerce utilizes its global presence and international marketing expertise to help U.S. companies sell their products and services worldwide. Locate the U.S. Commercial Service trade specialist in the U.S. nearest you by visiting http://export.gov/usoffices.
Colombia Economic Development and Investment Law