Copyright Holders, do not worry… Colombian Constitutional Jurisprudence on hotels has not changed

On July 6th this year, the Hotel and Tourism Association of Colombia (Cotelco) issued a lawsuit of unconstitutionality against Articles 159 and 163 of the National Copyright Law (Law 23 of 1982). These Articles establish that any communication to the public requires prior authorisation from the right holders of the communicated musical works. Hotels are within the places considered by the law as those where this type of use happens. Therefore, it would be thought that any communication to the public going on in a hotel are subjected to pay royalties. Nonetheless, Article 83 of the General Law for Tourism (Law 300 of 1996) decrees that ‘rooms in hotel and accommodation establishments that are rented with housing purposes are assimilated to a private home’.

This fact could have caused a huge controversy regarding Copyright obligations. However, in 1997, the Constitutional Court examined the constitutionality of Article 83 of the Tourism Law. In doing so, the Corporation concluded (Judgement C-282 of 1997) that hotels must pay royalties when the musical works are communicated to the public ‘including the communication of sounds or musical videos through internal networks to the rooms.’ Furthermore, it was clarified that ‘it is different, when guests, in the intimacy of a hotel room, decided to listen to musical works using the electronic devices they take with them – such as a portable recorder or a Walkman-’. For the Court, something different to the described example would be unconstitutional. Thus, it confirmed that hotels must pay royalties when music is communicated to the public in ‘public’ and ‘private’ places, such as corridors and rooms. First, because otherwise, it will constitute a violation of intellectual property rights. Second, because it will also break the principle of equality, due to the creation of an exclusion in favour of hotels while other commercial establishments will have to pay royalties.

In a clear attempt to avoid their obligations regarding Copyrights, the hotel sector, through its Association Cotelco, filed the mentioned constitutional action. They argued that the Copyright Law violate Articles 1, 13, 15, 18, 21 and 28 of the Political Constitution of Colombia, which are related to the fundamental rights to privacy, freedom of conscience, dignity, freedom, and equality. It was claimed that the fact that the Copyright Law does not distinguish between ‘private’ and ‘public’ spaces in hotels is a violation of the Constitutional Law due to the consequent limitation of the personal autonomy of people staying in a hotel.

On July 31st, the Constitutional Court declared inadmissible Cotelco’s demand through the writ D-12233. In the document was expressed that the lawsuit did not meet the criteria for this kind of action. Moreover, it was reminded that the scope of the expression ‘hotel’ had previously been clarified in the Judgement C-282 of 1997. Nevertheless, it seems clear that the writ changes the content of the Judgment.

In addition to dismissing the lawsuit, in this opportunity, the Court initiates its argument stating that the Judgement C-282 affirmed that ‘the communication to the public of musical works is not public or private depending on the qualification of the place, but regarding the subject who carry out the action and the economic end – lucrative or of particular and private recreation - sought by this person’ (own translation). Following this, the exclusion of the obligation when guests reproduce musical works using their devices is repeated. And, on that basis, it is finally concluded that ‘it is clear that, for Copyright purposes, the Court has interpreted that the expression ‘hotels’ is not extended to the inside of the rooms when the guests reproduce musical works, either for mechanic processes, electronic, sonorous, or audio-visuals’ (own translation). In its conclusion, the Court omits clarification on the use of the guests ‘own’ devices. This omission is fundamental because as a result an entirely different idea has been expressed. It is not the same the use by guests of their own Walkman or iPod than their use of the hotel’s TV or radio. This difference is the aspect supporting the exception. Because, for the Court, in the first case the obligation to obtain authorisation before reproducing musical works falls on guests; while in the second case, such an obligation falls on the hotel.In this way, and apparently by mistake, the Constitutional Court issued the writ D-12233 in the opposite direction than the expressed in the Judgement C-282 of 1997.

It is worth mentioning that a writ cannot modify a judgement. And, therefore, that the Colombian constitutional jurisprudence has not been modified. However, it cannot be denied that this fact will be used by the hotel industry to try to avoid compliance with the payment of royalties. Thus, probably a new legal battle is coming.

Latin America case law on this matter has consistently affirmed that the communication to the public of musical works in hotel rooms is subject to the payment of royalties. For example, in Argentina and Brazil, this use is considered as an economic exploitation because it directly affects the price of rooms (the hotel rooms with radios and/or TVs are more expensive). In the same vein, Chilean case law has accepted that any communication to the public of musical works must pay royalties because hotels are commercial establishments. For its part, in Paraguay, any communication to the public of all kind of artistic works triggers the obligation to pay royalties. Like Colombia, case law in Peru and Uruguay have analysed the use of works in a ‘domestic environment.’ Courts in these countries have concluded that although the guests are accessing musical works in a private place, only house rooms are considered domestic environments. From there, the obligation to pay royalties when this use happens in hotel rooms.

Post written by Florelia Vallejo Trujillo
Assistant Professor, Universidad del Tolima, Colombia
PhD Candidate University of Nottingham, UK