When Article 669 of our Civil Code defines the concept of ownership or property right, it would seem that our legislator was denying the capacity of a legal subject to be the holder of an incorporeal asset; This idea is superseded when the subsequent article is read, which states that “there is also a type of property over incorporeal things“.
Thus, in our legal system, two types of property coexist, an ordinary one that applies to tangible property and a special one that applies to incorporeal property, allowing the appropriation of both types of property. This distinction becomes evident when one begins to study the moral regime of copyright, in which the intellectual author of a work has a series of quite particular prerogatives.
One of these rights is the ability of the latter to demand from third parties a behavior that allows the conservation of his work, thus preventing it from being modified, deformed, transformed or destroyed without his consent. Although this right is logical, in some cases it may conflict with ordinary property, i.e., it may not always be clear what the owner of a tangible asset may or may not do with it, since this could imply a violation of the moral rights of the author.
Surely an emblematic case that reflects this conflict is what happened between the Sandiego Shopping Center located in the city of Medellin and the painter/muralist Gabriel Antonio Calle. In 2006, the artist created a work honoring Antioquian culture on a wall owned by the shopping center, commissioned by the establishment’s management. Subsequently, in 2012, due to the deterioration of the work—as it was exposed to the elements—the shopping center decided to erase the mural, as its aesthetic appearance was no longer optimal. Upon learning of this situation, Calle—surely annoyed—contacted the management and summoned them to a conciliation hearing, requesting compensation. The painter argued that the shopping center had flagrantly violated his moral copyright, by infringing upon a sanctioned part, despite it still being limited by the artist’s right that embodies special and ordinary property, as it violates the integrity of the work without his consent.
It is in these types of situations that the truly interesting conflict arises from the coexistence of special and ordinary property, because while it is clear that the muralist is the holder of the copyright, it is also true that the shopping center owns the wall where the work is located. Indeed, as Sandiego stated, the wall is its property, and therefore it decided to give it a different use, protected by its rights as owner. In any case, it is valid to ask: to what extent is this right limited by the right of the artist who created his work in that place?
Currently, the National Directorate of Copyrights, through the Sub-Directorate of Jurisdictional Matters, issued a decision sentencing Sandiego to pay the amount of $68,945,400, a not inconsiderable sum, although the appeal filed by the sanctioned party is still pending.
I am sure that this will be an obligatory case for those who teach intellectual property, since it is a clear example -whatever its outcome- of how ordinary and special property come into conflict without making clear the limits of each one of them.
Credit: http://www.larepublica.co/propiedad-especial-vs-propiedad-ordinaria_421321
By: Juan Esteban Vallejo Giraldo
