Law 1564 of 2012 (General Code of Procedure), in accordance with Article 116 of the Constitution, granted jurisdictional powers to the National Copyright Directorate (DNDA) to hear cases involving copyright and related rights; by virtue of such competence, the DNDA processes cases in its offices that would normally be heard by judges of the Republic, with the limitation that per year said entity may not hear more than one hundred (100) cases, all with the purpose of decongesting the ordinary justice system through the principle of collaboration.
By virtue of that special jurisdictional power, on the sixteenth (16th) day of August 2016, the Subdirectorate of Jurisdictional Affairs of the DNDA issued a landmark ruling in the field of copyright, given that the subject matter had not been the object of judicial decisions and had no precedents either in the DNDA or in the ordinary justice system (judges and magistrates of the courts and high courts); therefore, this ruling acquires transcendental importance for the field of copyright.
It is, then, a ruling that collects and applies the fundamental principles of copyright and recognizes murals as a type of artistic work, whose moral rights must be respected, in this case the right to the integrity of the work. However, in order to have a clearer vision of the points addressed in the ruling, I consider it appropriate to specify the facts that gave rise to the judicial process, the claims of the plaintiff, the defenses and arguments of the defendant, and of course the decision adopted by the DNDA.
Thus, in 2008, the artist Gabriel Antonio Calle Arango entered into a contract with the San Diego Shopping Center (Horizontal Property) for the creation of a work that would take the name "Lider" on a wall owned and possessed by the contracting party; the work had to reflect the culture, drive, and tradition of the Antioquian society.
After the delivery of the mural with the artistic creation to the shopping center, the work suffered gradual wear and tear due to the indiscriminate passage of time, as well as the climate and other factors that influenced the deterioration of the work. Therefore, the San Diego Shopping Center exercised its rights over the wall (tangible asset) and, after some actions to verify whether the work was considered an asset of cultural interest of the city of Medellín, decided to paint over the mural without the due authorization of the author, thereby causing the artist's work to disappear.
In light of such events, Mr. Gabriel Antonio Calle sued the Shopping Center for having violated his moral right to the integrity of his work "El Lider," and requests that the damages caused be repaired. For its part, the shopping center responds that moral rights were not violated, given that:
"The work presented such deterioration that it threatened ruin, not only the mural itself, but also the material support on which it was fixed."
Additionally, they stated that the work at no time constituted a cultural asset of the city of Medellín and therefore was not under the protection of the regulations of public assets of the city, among other considerations.
Now, it is worth highlighting the following points from the DNDA's decision, which will set the standard for future jurisprudence on similar cases:
- 1. Protection of the mural as an artistic work.
Decision 391 of 2000, which regulates copyright for the Andean community, establishes in its article 4: "The protection recognized by this Decision covers all literary, artistic, and scientific works that may be reproduced or disclosed by any form or means known or to be known, and which includes, among others, the following (...)".
Thus, despite the fact that murals are not expressly included in the aforementioned article, the article must be interpreted as illustrative and not exhaustive, as is evident from its literal wording. Therefore, the cited work materialized on the wall of the shopping center falls within the requirements stipulated for the protection of the work by copyright, given that it is an artistic work in its specialty of mural, which has as its physical support the tangible asset (wall), and undoubtedly is an artistic creation resulting from the effort of Mr. Gabriel Antonio.
- 2. The right to the integrity of the work
This is one of the moral rights of the author, which is inalienable, unseizable, imprescriptible, and non-waivable, and consists of the author's faculty to oppose any deformation, mutilation, or modification that undermines the decorum of the work or the reputation of the author.
But for the violation of this right to occur, it is required that the violation be of such magnitude that it implies an attack against the decorum of the work or the reputation of the author.
In the specific case, its violation was demonstrated because the San Diego Shopping Center erased the author's work from the facade of the support that contained it, that is, from the wall, losing the natural form in which the work should be perceived, which clearly proves its deformation, undermining the decorum of the work. According to the DNDA, "erasing the pictorial expression from the wall that incorporated it does constitute an attack against its decorum, since the purity, modesty, and esteem of the artistic manifestation made by the author have been eliminated, in such a way that it will be impossible to perceive it again even though it may be represented through other supports such as photographs."
As for reputation, it was not considered violated because it was not proven in the process, but certainty of its recognition is left for subsequent cases provided that the evidence requested and practiced in the process has the capability and capacity to demonstrate that type of damage.
- 3. Independence between the material support and the work.
The difference and independence between the property rights over the work in question (economic rights) and over the real estate on which it was fixed or represented (real rights) and the copyright over the work is made clear.
Clarifying that the material possession of the asset and its real rights cannot disregard the work that is affixed to it, that is, despite having ownership over the wall and over the work, it does not prevent disregarding the copyright that falls on the artistic work, including the right to the integrity of the work.
That is why the real rights over the wall find their limitation in the right that the author has over the work.
In that sense, the DNDA, based on the evidence ordered and practiced in the process, observed the following:
"With this perspective, it is necessary to point out that on the occasion of the intervention of a material support, there is a danger of introducing modifications that imply an attack against the integrity of the work, as indeed happened in this case. Therefore, it is up to the owner of the support to be diligent and careful when carrying out any process of intervention of their material property, so as not to incur liabilities that may arise from these actions."
According to the above, the shopping center exceeded its rights and disregarded those of the author.
On the other hand, it is worth mentioning that within the process, the shopping center argued that it had erased the work because both it and the wall that contained it were deteriorated, but they also took the trouble to verify that the work had not been declared of cultural interest to the city of Medellín. This gave the DNDA the opportunity to emphasize one of the basic principles of copyright: for a work to be subject to protection, it is not a requirement or condition that it have artistic merit in accordance with Article 1 of Decision 351 of 2000. That is, even if it had the status of an asset of cultural interest, it was fully protectable by copyright.