Penal protection to the copyright

The property and moral rights are protected by different legal mechanisms. In the international field, Colombia has ratified the Berna Convention, related to the literary and artistic works; the Roma Convention with regard to singers or performers artists’ protection; and the WIPO-Internet Treaties, among others1.¹.

Above instruments hold basic principles, so that in matters such as the content of the copyright, limitations and exceptions, and the means to exploit works (^{Sanchis, 2004}, p. 27), minimum standards of protection are ensured when countries -like Colombia- provide their own policy about this topic. At the regional level, it is the Andean Decision 351 of 1993 of the Andean Community of Nations, which is binding on the internal regulation, and likewise, addresses and supplies the policies and laws that are adopted or can be adopted about copyright (^{Palacio, 2016}, p. 151). Articles: 56 and 57 are highlighted from the copyright protection actions.

Article 57 empowers national competent authorities that in an infringement trial of one or more of these rights enact appropriate reparation for the damages suffered and determine the appropriate criminal sanctions that are applied to crimes of the same magnitude (Court of Justice CAN Process 33- IP-2008). Meanwhile, Article 56 empowers the coproprietors to enact precautionary measures, such as the cessation of the infringing activity and seizure, freezing, confiscation and preventive seizure, as a result of the number of copies produced by infringing any of the rights recognized in the decision (Court of Justice CAN Process 165-IP-2004).

The articles stated above show that the countries of the CAN, through the competent authorities -of civil, criminal, and/or administrative type-, should provide indemnifications and sanctions for compensation to the author/holder that has suffered damages to any of the copyright, and also to adopt precautionary measures to deter and prevent the infringement of these rights.

Developing the previous statement, in Colombia, the special regulation that references the protection to the copyright is Law 23/1982 and Law 44/ 1993. About Law 23, Article 238 specifies the possibility of the author/holder of the moral and/or property right² to ask the redress and reparation of damages through a penal process or before the civil jurisdiction, without covering the possibility of resorting to the other one.

The same law, further on Chapter XVIII -About the procedure before the civil jurisdiction-, notes that the disputes should be known by the ordinary civil jurisdiction³, according to Article 206 of the General Code of the Process. Deserve the same attention Articles 245 and 246; they reveal the precautionary measures such as the preventive secret of the work, production, implementation, issue and number of copies produced, or the productive of the sale and the rent of it.

Following with Law 44, in civil matters, Article 57 exposes three criteria for determining the material damages of the property rights of the author. They are: commercial values of the number of copies produced or reproduced without any consent, the value that could have perceived the holder of the right if he had authorized their exploitation and the period during which the illegal exploitation was carried out. Similarly, Article 54 exposes the possibility for the Police authorities suspend infringing activities, close establishments or seize illegal to bringing to an end the infringement.

It is pertinent to mention that the previous laws have been amended by Law 1915/ 2018, which in addition to renewing the main copyright regulation dating from 1982, it regulates the commitments that Colombia has made in the Free Trade Agreement (FTA) subscribed with United States⁴ in 2006 and approved through Law 1143/2007, July 4.

After a wide participation of the civil society, through work tables, public audiences, thematic meetings and more than six years of discussions⁵ about the feasibility of the law and its possible consequences (^{Botero, 2018}), this got to modify issues such as the regulation of orphan works, expansion of the exceptions and limitations of the copyright, such as parody, the regulation of Protection Technological Measures (PTM), incorporation to preset damages, as a new way of valuing the damages by infringements of the copyright and the author property rights catalogue, adding, for example, the transmission through wireless media, among others.

About the laws stated previously, regarding with the study of the criminal actions, the provisions of Law 23 and 24 about the topic have been repealed by Law 599/ 2000 issued by the Criminal Code. Particularly, this regulatory body ensures the protection to creations, that is to say, of the intangible asset -rather than physical or digital media on which the work is expressed or manifested- (^{Álvarez, Ceballos & Muñoz, 2013}, p. 98), by classifying the crimes according to the copyright that are protected, consequently there is a criminal classification for the protection of the moral rights, that are exposed in Article 270, and other two, for the protection of the property rights under Articles 271 and 272.

For example, about violations to the property rights, in a general mode, the Code classifies conducts that are linked to the fixation, illegal duplication and commercialization of one or different works without the prior and express authorization of the author and/ or holder (^{Olarte & Rojas, 2010}, p. 42). Taking into account that the patrimonial rights are not absolute and perpetual, the classification of the conduct must be developed verifying that it is not covered by the exception and limitation of the copyright, and the period of protection is still in force. It means, they are not in the public domain (Olarte & Rojas, 2010, p. 44).

About the penal protection of these rights particularly, the Constitutional Court has stated that without regarding the nature of the affected rights, the aim of the classification of these conduct is to protect the property interest of the aggrieved person in relation to the violated rights (Corte Constitucional, T-1062 de 2002).

Dwelling on the articles contained in the Criminal Code, at the moment of being issued, Article 271 sets as a crime of “Fraud of the Property Rights of Author” to the commission of certain kind of behaviors that impinge the property right of the author, and provided a criminal sanction corresponding in prison from two to five years, and a fine of between 20 to 1.000 times statutory monthly minimum wage (SMMLV).

Likewise, a reduction of sentence was set if the duplication or rent of a literary, scientific, artistic or cinematographic work, phonogram, videogram, systems software, computer programs do not have as a result a greater number than 100. Similarly, if plays or musical public performances are fixed, reproduced or commercialized without resulting in a number more than 100, the sentence is the minimum, not in two years, but in one year of prison.

With the entry into force of Law 890/2004, that adds and amends the Criminal Code, Article 14 increased the sentences of the articles in its special part. In this way, the crimes of the punishable of Defrauding of the Property Rights of the Author are in a minimum of 32 months and a maximum of 90 months, and in case the prison sentence becomes tempered to the minimum, it is reduced to 16 months.

Later, in 2006, Law 1032 was issued. It amends the Criminal Code about the provision, access or illegal use of the telecommunications services and violations to the mechanisms of protection to the copyright and related rights and other frauds. So, it modifies the text of Article 271, on the one hand, it changes the name of the crime of “violation to the property rights of the author and related rights”, and on the other, it increased even more the penalties to the exposed generally on Law 890/2004.

With regard to the penalties, stated from four to eight years of prison⁶ and a fine between 26,66 to 1.000 times SMMLV (statutory monthly minimum wage), starting from that moment, it was excluding the tempered circumstance of penalty stated on the previous legislation. From what has been exposed above, it can be inferred that any form of violation to the property rights of the author, even if it is minimal must receive the referred sanction.

The justification to this position is found in the explanatory statements of Law 1032/2006, when the Draft Act 30/ 2004 provides:

“(…) the piracy is a serious crime where the material object is intangible and has very negative implications in the frustration to the production of new talents and to the investments in the Entertainment and Culture fields. So, the piracy must be prosecuted and strictly punished, with decision and drastically”.

About piracy, this concept is used to refer to illegal duplications of material legally protected, through the no payment to the copyright (^{Trapiella & Molina, 2016}, p. 146). At the beginning, the infringement was carried out through the copy of cassettes or books, but with the technological advances and the use of internet digitalizing the information turns into an easy and expedited way of accessing to it, without paying copyright and/or asking authorizations of use, which affects property rights such as reproduction, distribution and public communication (^{Flórez & Bernal, 2016}, p. 37).

Although, these affectations to the property rights of the author become an economic and social problem, among others, they reduce the amount of taxes that States can collect and affect the markets engaged in art⁷ (OECD/EUIPO, 2016), penalizing all the violations to the property rights of the author - regardless of their severity- results incompatible with the liberal tenets of the Colombian Criminal Law System, it provides as a guiding rule the demand of the material anti-legality, not of the Criminal Code, but of the Colombian Criminal System⁸.

In that regard, the reprehensible conduct in a penal way must injure or actually jeopardize, without just cause, the protected legal asset by penal law, as Article 11 of Law 599/2000 provides, in this vein, as it was written Article 271 this verification was excluded, therefore, it can violate the guiding principle⁹.

In view of the above, in the case of the copyright - as legal and protected asset-, the anti-legality impedes that consistent conducts be penalized, for example, the distribution of a very limited number of copies or the download of a literary or scientific work for personal use, thus the conduct is adjusted in a literal mode to the penal type of infringement of the property rights of the author and related rights, there has not been any actual affectation to the legal property asset of the copyright with the conduct individually performed by the active subject (^{Velásquez, 2017}, p. 464).

Following this criterion of the demand of the antilegality, The Supreme Court of Justice has provided the exclusion of penal responsibility to subjects immerse in similar contexts to the mentioned previously.

This situation is revealed in the sentence of the Criminal Appellate Division of the Supreme Court of Justice of May, 2009, recorded number 31362. M. P.: Dr. Julio Socha Salamanca¹⁰, when this corporation expressed:

“(…) it does not mean that all conduct related to street sales or informal of non-authorized works must remain unpunished, but instead, according to the particular circumstances of the case, the material object of the action, analyzed in direct relation to the legal asset that number 1 of Article 271 of the Criminal Code intents to protect, it does not imply a transcendental risk for the property rights in the head of the writers and publishing houses, without detriment that can be the action of offering for the illegal duplications sale in excessive higher amounts” (underlined out of the text).

What the Court has stated finishes with the incompatibility between the last aim of Law 1032/2006 and guarantees tenets of the Criminal Law System of minimum interference, and particularly the constitutional provisions, as the contemplated in Article 16 superior, it establishes that the right to free development of one’s personality (that protects the general liberty of the action¹¹) only can be limited when it converges with the affectation to juridical order (infraction to a juridical regulation) and the affectation to the rights of the others (impairment of legal assets).

So, even there is a penal classification that provides the imposition of a sentence before the performance of certain behavior, this sanction must be left aside until be determined that the conduct performed is affecting in a significant mode to a legal asset protected by the criminal law, as it must happen in the protection of the property rights of the author. Where the imposition of penal sanctions to conducts that do not affect significantly legal assets, it will be in front of the abuse of the right (^{Gómez & Barbosa, 1998}, p. 50) or a State terror (^{Hassemer, 2007}, p. 103).

Again, with the article 36 of Law 1915/2018¹², Article 271 was amended, a second paragraph was added, it stated: “The duplication of the works through computing means included in this article will be punishable when the author does it with the aim of getting a direct or indirect economic benefit, or does it at commercial level”.

About this modification, it is necessary to do three annotations. The first one is the inclusion of a subjective special element; it is defining the crime when works are reproduced through computing means “with the aim of obtaining a direct or indirect economic benefit”. On the basis of this, the incorporation exonerates to those users of internet who reproduce protected contents by the copyright for personal use, for example, when it is carried out with educative and entertainment purposes.

The second one, the incorporation of a special objective element, it is about the materialization of the crime when works are reproduced through computing means at commercial scale. Although, it is not clear when the article states the commercial scale, it could be assumed that is related to the iterative illegal duplication of the work, that is to say, when it is carried out in a considerable number of times so it can be considered a commercial activity.

As a third annotation, it involves the use of the word in Spanish “o” (or) to connect the two special elements of the type; that is to say, to be a crime it requires, whether the economic benefit or that it be carried out iteratively. The use of the Spanish disjunctive conjunction “o” (or) can become conflictive because, without taking into account the number of reproduced copies, if the infringer has been profited, it will become an offence. It means, if a person reproduces once the protected work by copyright through computing means, and obtains an economic benefit, the crime will be materialized and the affectation or damage to the legal asset would be null, therefore, there would not be material anti-legality.

The use of the Spanish disjunctive conjunction “o” (or) can become conflictive because, without taking into account the number of reproduced copies, if the infringer has been profited, it will become an offence. It means, if a person reproduces once the protected work by copyright through computing means, and obtains an economic benefit, the crime will be materialized and the affectation or damage to the legal asset would be null, therefore, there would not be material anti-legality.

Likewise, it is considered an infringement of the duplication of contents without measure through computing means and which are protected by copyright. In this setting, due to it only states a quantitative value, it does not matter if the lawbreaker acted with profiting purposes or not, ant it will not be verified if it causes a real affectation in the exploitation to the property rights of their holder.

Bearing in mind previous statement, it can be concluded that the protection to the property rights of the author arise from different type of actions, such as penal and civil. In the case of the penal actions, they are typified in the Articles 271 and 272 the Criminal Code.

Especially, Article 271 stipulates a condemn from four to eight years of imprisonment and a fine between 26,66 to 1.000 times SMMLV (statutory monthly minimum wage) without alleviation. To set up a crime, it must be verified that the typified conduct is actually bringing an effective danger to the property rights of the author, that is to say, it is materially antijuridical to be considered as a criminal offense. Also it must review, in the case of the duplications through computing means that the conduct is done with profiting purposes or at commercial scale.

Law of penal abbreviated procedure and copyright

The national legislator has revealed a tireless commitment to bring to the penal arena behaviors that do not affect in a conspicuous way the assets which are legally protected. Law 1153/2007 was an example of this, it is known as the Minor Offences Act, and it states that certain conducts should be sanctioned in a criminal way with penalties that involve the privacy of liberty, with the label “criminal contraventions”.

In other words, it included conducts that represent a low affectation to the legal assets to be subjected to a summary procedure, where the charge of the investigation belongs not to the Office of the Attorney General of the Country, but to the National Police, according to Article 36 of this regulation.

Above Law was declared unenforceable by the Constitutional Court by ruling C-879 of 2008, considering that it violates the Constitution, because according to Article 250, the authority of investigating legal processes that are penal rooted only can be carried out by the Office of the Attorney General of the Country.

In 2011, due to the Legislative Act 06/2011, the constitutional document was amended, and set that the ability of the state public prosecutor’s office of investigating the facts with connotation of punishable conducts was not so private and non-delegable. In this sense, the article second of the stated legislative act laid down the amendment of the Paragraph 2 Article 250 superior, allowing the state public prosecutor’s office to assign to the victim the investigation and presentation of charges related to punishable conducts, focusing on the nature of the legal asset or the limited harmfulness, what sets up the private prosecutor figure.

With this modification to the constitutional document, and with the purpose of relieving the justice system¹³, in 2015 the Draft Law 48 Senate was presented to the Congress of the Country, it was proposed:

According to the abovementioned draft regulation, highlighted contraventions are those ones threatening life and personal integrity, the inviolability of habitation or place of work; the intimacy; the reserve and interception of communications; the liberty of work and association; the religious feeling and respect to dead; the moral integrity; the family; the failure to provide maintenance; the economic property; the public trust; the economic and social order; the public security; the public administration; the effective and righteous justice administration, and the existences and security of the State.

The punishable conducts that infringe on the legal assets of the copyright are excluded, it means, for the Draft Law 48/ 2015 Senate, the offences against copyright would not be processed through a special abbreviated procedure also they would not be susceptible that the accusation could be assumed by the victim as a private prosecutor.

However, what was stated on the Draft Law 48/2015 Senate, later it enacted Law 1826/2017, through it, a special abbreviated penal procedure is set and the figure of the private prosecutor is regulated. It brought variations in relation to the Draft Law which created it, in both the substantive and procedural laws.

As strong points to highlight, Law 1826/2017 refrains of creating a group of a special punishable conducts with penalties that are proportional to their level of harmfulness, and ordered the application of the special abbreviated procedure to a set of conducts, as crime complaints, among others. Thus, it orders the amendment of the articles that in the Code of Criminal Procedure approach the figure of the punishable complaints conducts, keeping in every case the same penalties that were established in the Criminal Code.

If the legislator did not create a special category of “contraventions”, ordered to amend the literature of Articles 66, 71, 72, 73 and 76 of the Code of Criminal Procedure, using the term “punishable conduct”¹⁴ where it referred to the concept of “crime”, it reveals in the abbreviated penal procedure crimes will be processed and also the contraventions, it means, punishable conducts that affect in a minimum way the legal asset that has been protected in a penal process or when the prejudiced interests or the assets in danger are lower level offences ( Constitutional Court, Sentence C-301 de 1999).

About the “punishable conducts” in which result appropriate the process of the special abbreviated procedure, Article 10 of Law 1826 says, first of all the criminal complaints, according to the same Draft Law 48/2015 Senate, and then it sets a group of punishable conducts without being of the criminal complaint type, they would be processed under solemnities of the special abbreviated procedure, which are:

“Personal damages referred on Articles 111, 112, 113, 114, 115, 116, 118 and 120 of the Criminal Code; acts of discrimination (C. P., Article 134A), harassment (C. P., Article 134B), aggravated acts of discrimination and harassment (C. P., Article 134C), failure to provide maintenance (C. P., Article 233), theft (C. P., Article 239); larceny (C. P., Article 240); aggravated theft (C. P., Article 241), numbers 1 to 10; scam (C. P., Article 246); breach of trust (C. P., Article 249); private corruption (C. P., Article 250A); unfaithful administration (C. P., Article 250B); abuse of inferior conditions (C. P., Article 251); improper use of privileged information in private individuals (C. P., Article 258); the crimes included on Title VII bis, for the protection of information and data, with exception in the cases when the conduct rests over assets or entities of the State; violation of moral rights of the author (C. P., Artículo 270); and related rights (C. P., Article 271); violation to the mechanisms of copyright (C. P., Article 272); falsehood in private document (C. P., Articles 289 and 290); usurpation of industrial property rights and plant breeders’ rights (C. P., Article 306); illegal use of patents (C. P., Article 307); violation of industrial and commercial reservation (C. P., Article 308); unlawful exercise of the monopolistic activity of rental arbitrator (C. P., Article 312)” (underlined out of the text).

This clearly indicates that the legislator opted for processing through the special abbreviated process, certain type of investigable conducts of ex officio. In other words, in those conducts that: (i) their effects overcome the private orbit of the victim, (ii) are considered of such severity that are of interest to all society, (iii) do not accept withdrawal, it is to say, that the procedural step will be continued even against victim’s willingness and these will be subjected to the “fast and expeditious” process of the special abbreviated procedure, allowing the use of the private prosecutor figure before this type of punishable conducts.

In consideration to the special precision that Law 1826 used to modify the terminology related to “crimes”, for changing it to “punishable conducts”, it is inferred that with the addition of the three articles on Title VIII of the Criminal Code, of the conducts against copyright, results totally appropriate to the new legislation to impose penalties from 32 to 90 months in prison in the case of infringement of the moral rights of the author (Art. 270), or from four years to eight years in prison, in case of violation to the property rights of the author and to the related rights (Art. 271), or of violation to the mechanisms of protection of copyright and related rights, and other frauds (Art. 272) due to conducts that do not affect in a meaningful way the legal assets of the copyright, because before this special abbreviated procedure not only crimes are processed, but also contraventions.

In this way, in the case referred decided by the Supreme Court of Justice in the sentence of May 13, 2009, recorded 31362, under this new scheme brought to the Colombian legal system by Law 1826/2017, would bring to the judge to impose the penalty established in the penal type, rather than declaring the acquittal of the accused, where those small or null affectations to the legal asset become punishable because they are penal contraventions, that is to say they are contrary behaviors to the strict legal orders.

Punishable conducts against copyright and judicial processes congestion Although, the main reason that promoted the adoption of a summary penal procedure and to create the private prosecutor figure was to combat the judicial processes congestion when conducting less wasteful processes and without all solemnities, because the processes take less time to reach a sentence, and also the state public prosecutor’s office can aim efforts in investigation and prosecution of crimes particularly serious, leaving the victim these tasks before crimes “of small or null social transcendence”, these aims in the field of crimes against copyright are not clear.

In the specific case, crimes committed against copyright at any moment have been considered -not even when Law 1826/2017 entered into force- as criminal complaints. However, this law provides that the special abbreviated procedure and the private prosecutor are suitable to this kind of punishable; it does not mean that they are considered criminal complaints.

According to the description of motives of the Draft Law 48/2015 Senate, 21% of the criminal processes that currently are active are developed as criminal complaints, so it results entirely reasonable that the punishable criminal complaints are processed by the special abbreviated procedure, and the conversion of the penal action from public to private proceeds before them.

In the case of copyright, it becomes interesting verify the number of criminal reports presented to the public prosecutor’s office with regard to committing punishable conducts that infringe upon copyright, at least since 2015 when the Draft Law 48/2015 Senate was presented.

Although, there are not precise statistics that evidence the number of crime reports presented yearly by infringement of copyright and even less who were the lawbreakers and victims, the criminal reports of the Office of the Attorney General of the Country allow to determine that the punishable conducts effectively threatening copyright do not constitute a serious cause of judicial congestion processes and for that reason the Draft Law 48/2015 Senate did not included them in the list of those ones to be processed through the special abbreviated procedure and suitable for applying to the figure of private prosecutor.

This inference is the result that in the year 2015, a total of 771.300 of criminal reports were presented, only 1.210 of them were conducts that violate the copyright, it is a 0,156% of the criminal reports. In 2016, 1.126.481 criminal reports were submitted by different punishable, 683 of them belonged to conducts that infringed on the legal asset of the copyright; it is a 0,060% of the criminal reports. Finally, in 2017, 1.329.560 crimes were reported; but only 471 are with occurrence of infringement of copyright, it is to say, that they constitute only a 0,035% of the penal requirements developed in Colombia¹⁵.

In spite of what was stated above, Law 1826/2017 orders that these conducts be processed through the special abbreviated procedure and that, subsequently, the conversion of the penal action from public to private can be requested, therefore it can be ruled out that the reason that led the legislator’s decision was motivated to reducing the judicial processes congestion.

Punishable conducts against the copyright are not criminal complaints

As it was showed, starting from the entering into force of Law 1826/ 2017, the criminal processes that are developed by infringement of the copyright will be conducted -it does not matter the amount- through the special abbreviated procedure, without meaning they are criminal complaints.

The fact that a punishable conduct becomes a criminal complaint, according to the Article 73 of the Criminal Code, it means that the penal action discontinues in a term of six months following the date of the occurrence of the punishable conduct if the crime complaint is not presented. Previous statement means that the legitimate claimant -unique authorized to begin the penal action- counts only with this peremptory term (except for unforeseeable circumstances or acts of force majeure) to report to the competent authorities the occurrence of the facts (Supreme Court of Justice, SP7343-2017).

According to the aforesaid, the punishable conducts that violate the copyright, with the entry into force of Law 1826/2017, are subjected to the systematic proper of the special abbreviated procedure, without being affected by the discontinuance effects of the expire date of the criminal complaint, because Law 1826 did not transform them into criminal complaints.

On the other hand, in the punishable complaints conducts, the power to initiate a penal action is of the victim¹⁶, because at the beginning there is not a state’s interest in the penal persecution of these conducts (^{Bernal & Montealegre, 2013}, p. 54). In other words, by definition it is about conducts that affect only victim’s interest and in this sense admits a withdrawal (Corte Constitucional, C-591 de 2005).

Arising as a result of the above, conducts that affect the legal assets of the copyright have not been become criminal complaints, taking into account that these rights are fundamental to consolidate the development of the country, so the production of creations -works in particular- contributes to the culture, knowledge and intellect (^{Erdozain, 2002}, p. 17). Authors like Gaviria have pointed out, that the crimes against the copyright, although cover individual assets, they are characterized because they influence common interests necessary for the economic and social development of the country¹⁷.

Moreover, in the explanatory memorandums of the Draft Law 30/ 2004 Senate, it led to the issuance of Law 1032/2006, piracy constitutes a serious crime and a modality of organized criminality. Piracy must be assumed as one of the most serious ways of crimes against the private property and national treasury (smuggling).

In this regard, it does not result coherent that some punishable conducts that are of specific concern -and that affect in a strong way the society- be assumed through a summary process like the specific abbreviated procedure. On the contrary, these conducts must be subjected to a procedure that guarantees to the prosecuted and the victims the realization of their rights, in which they count on enough legal terms to consume an excellent investigative and judging stage, where the judge counts on the easiness of access in a direct way -in hearing- to all the elements of evidence collected, both, by the prosecutor and the advocate.

Only then, the judge can deliver a sentence for giving a definitive solution to the issue subjected to his knowledge, recalling the words of Dr. Gabriel ^{Upegui Palacio at the Universidad de Medellín, on July 30th, 1986}: “the celerity is an enemy of the true, and we can fall in the procedure of ‘there is no time to waste’, of the satisfactory effect of ‘surprise’, of the blaming request” (^{Upegui, 1986}, p. 498).

The private prosecutor and the conducts that affect the copyright. The case of crimes against property rights

Another aspect to take into account is the referred to the possibility that in the processes governed by the special abbreviated procedure, the investigation and prosecution become assumed directly by the victim of the punishable, under the figure of the private prosecutor.

On this, Law 1826 has set, in its Article 29, that has added Article 551 to the Code of Criminal Procedure, that the conversion of the public penal action into private can be requested by the same persons that in the terms of Article 71 of Law 906/2004 are understood as the legitimate claimants, it is to say, the victims.

In the same sense, the subparagraph “a)” Article 32 of Law 1826/2017, which adds Article 554 to Law 906 of 2004, orders as a causal for the non-conversion of the public penal action into private that the victim role does not be accredited, but not the role of legitimate claimant. Likewise, the second clause of Article 9, of the Resolution 2471 of July 11 of 2017, issued by the Attorney General of the Country, through it “Regulates the internal process of the Office of the Attorney General of the Country to ensure a control of the conversion and reversion of the penal action within the framework of the private prosecutor”, it establishes in an explicit way that “when the request of conversion is done along with the criminal report or criminal complaint, the term of one (1) month shall begin to run following the moment that the criminal reports have been assigned” (underlined out of the text).

This means that the request of the private conversion is not exclusive of the crime complaints, so it results appropriate the request of conversion of the penal action before crimes of informal penal action, as long as they are processed through the special abbreviated process -such as punishable conducts that infringe upon the property rights of the author-, as it is set on Article 28 of Law 1826/2017 and the Article 7 and Subparagraph “a)” Article 8 of the stated Resolution 2471/2017.

With this in mind, the conducts that must be processed by the abbreviated procedure stated on the Book VIII of Law 906, with exception of those ones that impinge on the assets of the State and of processes carried out by the penal responsibility system for teenagers, it can appeal to the private prosecutor figure (^{Cuentas, 2018}, p. 324), even in investigable conducts ex officio, as long as they must be judged by the special abbreviated procedure. Here the victim of the punishable conduct, for requesting the conversion of the public penal action to private before the corresponding prosecutor, must be represented by a lawyer or a student of a legal aid clinic of accredited universities, according to Article 549 of the Code of Criminal Procedure, that was added by the Article 27 of Law 1826/2017, and the Subparagraph “c)” Article 7 of Resolution 2471/2017.

In this aspect, and taking into account that the private prosecutor will replace to the state public prosecutor -not only in the task of prosecuting before the Preceding Judge, but also in the labor of investigating-, according to the Article 556 of the Law 906/2004, added by the Article 34 of Law 1826/2017, the victim interested in assuming directly the accusation must hire the services, not only of a licensed attorney that represents him, but also experts and investigators who provide evidentiary basis to the prosecution. From the above, it is clear that this figure is focused on serving to individuals who have the necessary economy incomes to pay those services.

Although, the victim of the punishable conduct can act as a private prosecutor through a student of a legal aid clinic, that assists these activities for free, also he must entail costs of the investigative work that involves to collect and to obtain material items of evidence, physical proofs and legal information gotten to support the prosecution, highlighting that this investigative function is not assumed by the legal aid clinics of the accredited universities, and therefore the victim must pay these services.

As a matter of fact, the Law 1826/2017 has created the necessary conditions in order to the great businesspersons, owners of big publishing houses, records houses, digital platforms and management business partnerships can use the power of the punishable power of the state at will, allowing them to handle the prosecution in a direct way.

What was stated above takes people of low incomes who occasionally resort to the books and CDs street sale, or common persons such as students, researchers and teachers who need information without profit motives come to be reduced and victims of their basic rights violation when they are object of actually disproportional penal sanctions, in contrast with the activity carried out and the patrimonial impairment that these actions individually devised cause to the big enterprises that exploit to a big scale the property rights of the author.