An extract from The Technology Disputes Law Review, 1st Edition

Overview

In the past 20 years, Colombia has experienced fast growth, resulting in correspondingly higher living standards for its population. This rate of growth has been among the strongest in the Latin America and Caribbean region.2 However, the country still faces many challenges, including lack of widespread access to the internet, low productivity in several industries and the informal nature of the labour market.3 These, among other issues, led the country to prioritise digital transformation and implement a number of regulations to encourage innovation and productivity through technological advancement in several industries, in turn allowing the technology sector to grow significantly.4

According to the Colombian Observatory of Science and Technology, the tech industry in Colombia has a direct impact in all fields of industrial and knowledge production, services and all fields of human activity in general. The tech industry in Colombia is composed of five different dimensions: (1) the infrastructure that supports the use of services and products; (2) the manufacture and sale of information and communications technology, (3) the production of telecommunications services, (4) the digital platform industry, and (5) the research, development and innovation necessary for the industry's continuous evolution.5

Because the tech industry in Colombia has assumed an important role for the country's economy, it has prompted the development of the country in recent years and has created a strong relationship between the new technologies and economic growth.6 This can be seen mainly in the growth in the areas of telecommunications, software and tech services, which have positioned the country as an important regional nearshoring centre.7 According to the report by Colombia's software and information technology (IT) industry association, Fedesoft, on the characteristics of the software and IT industry, tech companies in Colombia operate mainly in the development of products and services for information and communications activities, finance and insurance activities, administrative and support activities, and technical, professional and science-related activities.8

The Colombian government has enacted a series of regulations to promote the development of the tech industry and allow private resources to fuel its growth, among other measures.9 Some of the laws enacted in past years include Law No. 1341 of 2009, Decree No. 1078 of 2015 and, among other emergency measures enacted because of the covid-19 pandemic, Law No. 1978 of 2019. These regulations sought to facilitate access to the digital arena and to information and communications technology, and to establish provisions for the modernisation of the industry.10

Notwithstanding this, the transition to a more digitalised society has also provided fertile ground for national and international disputes. Given the importance of the entry into the tech market of newer technologies, the interconnection of most industries with the tech industry and the presence of foreign direct investment in the industry,11 among other factors, this chapter will focus on four main areas to provide an in-depth analysis of specific sectors of the tech industry from a dispute resolution perspective. Disputes have arisen or may arise in these four areas primarily because of the legal uncertainty and the challenges they present under Colombian law; these are (1) intellectual property (IP) disputes related to technology innovations, (2) the telecommunications industry, (3) the internet services industry, and (4) the new technologies industry. While the last of these may not currently be a dispute-driven sector, it does have a lot to learn from the other three.

The IP sector is a highly regulated industry in Colombia. According to the World Intellectual Property Organization, in Colombia IP protections are sought mostly in the mining and construction machinery industry and for pharmaceutical products, chemical substances, synthetic rubber, and agricultural support activities.12

Nevertheless, for the tech industry IP still plays a key role in Colombia as it protects the rights of creators of new technologies, digital content and digital platforms, in particular in light of the significant growth that the industry has seen in recent years. However, protective as the IP regime may be, it may also be hindering development and growth in the Colombian market as some technological assets, such as software, cannot be patented in Colombia and have to be protected through other means, such as copyright or as trade secrets.13 This may affect developers' decisions to enter the market. In addition, the digitalisation transformation that is taking place in the country and the entry of new technologies test the IP protection regime in Colombia as there are always newer and different technological developments being released into the market, which also poses a challenge for IP regulation.14

The telecommunications sector in Colombia has seen rapid growth in the past 30 years, mainly in the mobile services sector. Since the early 1990s, Colombia started the process of liberalisation of the telecommunications market, which allowed significant infrastructure development, especially through foreign direct investment.15

In particular, private investment in the telecommunications industry has helped bolster and expand the 4G and fibre networks, as well as enabling the progress, modernisation and implementation of new technologies in the country by helping infrastructure providers to meet the demand for connectivity.16 This is evidenced by the revenues generated by the telecommunications industry in Colombia, which by 2012 was the third-largest market in South America, with revenue of US$13.9 billion.17

As for the digital platform sector, the system development and service delivery sectors fall under its scope. It is one of the core areas of the tech industry in Colombia, given the country's aim to provide access to the internet in the entire state territory.18 This sector involves content creation, app development, over-the-top media services, IP technology and social media.19

The main asset necessary for this sector's development is access to the internet. Therefore, one of Colombia's main goals is to guarantee internet access in the entire territory. This goal was envisioned in Law No. 1341 of 2009, modified by Law No. 1978 of 2019, as a state policy, with a view to promoting content and app development, and granting access to networks and social media.20 By doing this, Colombia seeks to promote internet access and digital platform services so that more resources will be invested in this industry and knowledge will be more accessible throughout its entire territory.21

App development is an important sector of the tech industry in Colombia and the promotion and fuelling of this sector is directly related to the goal of the state to create a more efficient and productive industry.22 App development is also important, as it is connected to other industries, such as business process management, customer relationship management, e-commerce, social media, mobile applications, academic institutions and technological infrastructure, among others.23

Finally, new technologies are always posing new challenges to society, in particular to traditional regulations. Artificial intelligence, big data, fintech and blockchain technologies are new and rapidly evolving industries that pose some of the hardest challenges to states and national and transnational regulations, which cannot keep pace with the technologies' evolution.24