Washington International Law Journal


Carlos Rubio is the original author of the article. It was translated into English by David Cromwell.


The following is a translation of Carlos Castellanos Rubio’s article in the June 2011 edition of La Revista de Derecho, Comunicaciones y Nuevas Tecnologías, a Colombian legal periodical. The article discusses a 2010 Colombian Supreme Court of Justice decision that sentenced Professor Luz Mary Giraldo to two years in prison plus monetary and civil sanctions for plagiarizing a student’s thesis, “The Poetic World of Giovanni Quessep.” The decision has been controversial in Colombia for a variety of reasons, and many have accused the Court of judicial activism. Much of this criticism stems from the Court convicting Giraldo of violating the student’s moral right to publish, or not publish, her “unpublished” work, based on an expansive reading of that statute. These critics have pointed out that the student’s work was published, and sitting in her university’s library. Others have decried the severity of the sentence, as it is the first criminal moral rights conviction in Colombian history. In this article, Mr. Castellanos explains how the Court based its decision on a broad interpretation of the personhood theory of copyright, without any discussion of the theory itself or its alternatives. He then suggests potential problems with the Court’s perspective; namely, that it might grant monopolies on unoriginal expressions and ideas, and thus stifle free expression. As a solution, the article proposes that Colombian judges develop and/or adapt analytical tools for filtering out a work’s unprotectable elements from the original, protectable elements, focusing on the idea/expression dichotomy.

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