Four years ago, Diego Gómez was studying biology at the University of Quindío in Colombia. When he decided to focus his work on amphibians and reptiles, he came up against a problem: He lacked many of the scientific research materials—books, journals, biological specimens—of a larger university. At the time, his school didn’t have a single herpetologist either.
So Gómez made the six-hour trip to a library in Bogotá, where he obtained an academic paper he considered crucial to his studies. Like many academics, he shared it on the web, uploading the document to Scribd. “I thought it was something that could be of interest for other groups,” he wrote. A year later, much to his surprise, the paper’s author sued, alleging that posting the article online was a copyright violation. Now Gómez is facing up to eight years in prison.
“When loading the thesis, I never thought I was violating any law,” Gómez tells Newsweek. “Such documents are publicly available in the universities. In fact, even some of them allow online access.”
Gómez is accused of violating “economic rights and other rights” under the same Colombian law that protects the copyright of music, movies and other for-profit entertainment. But, as open-access advocates point out, he published the article online to assist herpetologists in identifying amphibians and reptiles for conservation, not to turn a profit. For Carolina Botero, the director of Fundación Karisma, a Colombian digital rights group assisting Gómez, the case reveals a larger problem with intellectual property law in Colombia and around the world. “The laws that industries built have been used for science,” she says.
The accusations against Gómez weren’t brought by a government prosecutor or a publishing company looking to protect its profits, as is commonly the case. Instead, they are being made by the author of the scientific paper himself, who likely received no compensation for his work. Through his lawyer, Gómez has tried to settle with the author. But, says Botero, the author believes the offer is too low. “He says he’s not interested. He really claims there have been damages. But he hasn’t really told us the problem.”
Gómez has not publicly named the researcher in question, and the author, identified by local media as a biology professor at National University in Colombia, did not reply to Newsweek’s request for an interview. Under Colombian law, the author could have chosen to pursue a civil case against Gómez. However, according to Botero, “The truth is that, more often, criminal procedures are used.” In copyright cases, “criminal law has been used a lot as a threat,” she says, because in Colombia “you just have to say you have a damage. The industry pushed for this kind of measure.”
For Gómez, the author’s outrage is hard to reconcile with the objectives of scientific research. According to him, the paper in question is a master’s thesis that he used to identify species (presumably amphibians and reptiles) while doing fieldwork in Colombia, the second most biodiverse country in the world, behind Brazil. Gómez obtained the thesis from the library at the National University in Bogotá to identify which animals biodiversity conservationists like himself should focus their efforts on.
“I’m disconcerted that this activity I did for academic purposes may be considered a crime, turning me into a ‘criminal,’” Gómez wrote in a statement for Fundación Karisma. “Today, what the vast majority of the country’s researchers and conservationists are doing, despite being committed to spreading knowledge, is turning us into criminals.”
Part of the problem, according to Heather Joseph, executive director of the Scholarly Publishing and Academic Resources Coalition, is that intellectual property laws—or rather, the groups that lobby for them—tend to conflate academic research with commercial media. Unlike movies, television shows or magazines, with scientific research “you build on the work of others,” she says. “The research has no value if you can’t share it.” As Botero notes about Gómez’s case, conservationists can’t help the species identified with the author’s thesis if they don’t have access to the paper.
Gómez’s scientific motives may help him at trial. In 2008, the Supreme Court in Colombia ruled that copyright infringement is a criminal act only if it was done for profit or to injure the rights holder. And indeed, at the time of the upload, Scribd was a free service. But the case is complicated by the fact that in September 2010, the company implemented a paywall system in which users get paid when people access their materials. “There was a change in the terms of service,” says Botero. “He found out about this when the investigation against him started.”
Gómez tells Newsweek that he received no money from the paper after the paywall was raised. Scribd did not respond to a request for comment.
The law Gómez is accused of breaking was established in 2006, says Maira Sutton, a global policy analyst at the Electronic Frontier Foundation, as “a direct result of a free trade agreement between Colombia and the U.S.” Specifically, the agreement’s Intellectual Property Rights chapter ensures that each country must “provide for criminal procedures and penalties to be applied” when a copyright work is shared without permission. Before the trade agreement, Colombia already had strict copyright laws. But, says Botero, the U.S. “pushed for more penalties, higher penalties and prison.”
Due in part to the size of its entertainment industry, which was worth $480 billion in 2012, the U.S. has strict intellectual property rights laws. Last year, a similar but far from identical version of Gómez’s case came to a tragic conclusion in the U.S. In 2011, RSS co-creator and activist Aaron Swartz downloaded a massive trove of academic articles from the journal database JSTOR. Many of them had been funded by American tax dollars. In response, the U.S. Department of Justice charged him with wire fraud and a slew of other crimes, despite the fact that Swartz never shared the material online. Facing up to 35 years in prison, Swartz hanged himself in January 2013. In a congressional hearing over Swartz’s prosecution, U.S. Attorney General Eric Holder said it was “a good use of prosecutorial discretion.”
As a major exporter of copyright media—about 30 percent of the global entertainment market—the U.S. maintains a strong, lobby-driven interest in proliferating this strict policing of intellectual property abroad. Its size gives it considerable leverage in this respect. Consider its trade with Colombia, a country whose gross domestic product is one-fiftieth the size of America’s: In 2013, the U.S. exported $19 billion in goods to Colombia, while Colombia exported $22 billion to the U.S. That means about 6 percent of Colombia’s GDP was derived from its exports of bananas, coffee and other goods to the U.S., but only slightly more than one-tenth of 1 percent of America’s GDP comes from sales to Colombia.
Botero sums up the American advantage in its free trade agreement as “We’ll buy your bananas. But here is the copyright law.”
“This is happening all over the world,” the Electronic Frontier Foundation’s Sutton tells Newsweek. For example, the U.S. is currently negotiating the Trans-Pacific Partnership (TPP) trade agreement with 11 other countries, including Japan, Mexico, Peru, Singapore and New Zealand. The agreement is being forged in secret, but, Sutton says, a draft leaked late last year indicates it will continue to perpetuate what she calls “copyright law creep.” In an assessment of the draft, the foundation concluded that if it is implemented as written, “countries would have to adopt many of the most controversial aspects of U.S. copyright law in their entirety.”
Curiously, the U.S.’s influence on foreign copyright law—at least as it pertains to academic research—appears to contradict White House policy. In February 2013, the U.S. Office of Science and Technology Policy issued a memorandum to federal agencies saying that research funded by the federal government should be made freely accessible. “The Administration is committed to ensuring that, to the greatest extent and with the fewest constraints possible…the direct results of federally funded scientific research are made available to and useful for the public, industry, and the scientific community,” wrote the office’s director, John Holdren.
Despite this, the leaked TPP draft does not contain any similar language insisting that, along with the harsher copyright laws, other countries adopt America’s “fair use” exemptions for work such as academic research. “They increased all the penalties without putting any of the safety valves in,” says Michael Carroll, a law professor at American University. “That creates an imbalance with our trading partners.”
The U.S.’s free trade agreement with Colombia also does not include any copyright law exemptions for fair use or academic research. Exemptions already set by Colombian law are from 1982 and 1993, when, Botero says, “nobody was thinking of the Internet. If we had an open clause like fair use,” she adds, “we could in the criminal analysis present this as a defense for Diego.” Instead, he’ll face exceptionally harsh copyright laws shaped in part by the U.S. copyright industry.
“I am surprised,” Gómez wrote, “that research and generated knowledge on natural history…has been transformed into a market instrument.”