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SPECIAL PROPERTY VS. ORDINARY PROPERTY

When article 669 of our Civil Code defines the concept of dominion or property right, it seems that our legislator is denying the capacity of a legal subject to be the owner of an incorporeal good; this idea is overcome when reading the subsequent article where it is mentioned that “on incorporeal things there is also a kind of property“.
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 made a work paying homage to the Antioquian culture on a wall owned by the mall, commissioned by the directors of the establishment. Subsequently, in 2012, due to the deterioration of the work -because it was outdoors- the mall decided to erase the mural, as its aesthetic appearance was not the best. Calle upon learning of this situation – probably annoyed – contacted the directives  and summoned them to a conciliation hearing, requesting compensation, since the painter felt that the mall had flagrantly violated his moral rights as author, by violating the sanctioned part. although it is still limited by the right of the artist that embodies special and ordinary property, since it violates the integrity of the work without his consent.
It is in this type of situation where the really interesting aspect of the conflict generated by the coexistence of special and ordinary property is found, because although it is clear that the muralist is the owner of the copyright, it is also clear that the mall is the owner of the wall where the work is located. In fact, as Sandiego stated, the wall is his property and therefore he decided to use it for a different purpose based on his rights as owner. In any case, it is valid to ask ourselves: to what extent is this right limited by the right of the artist who has placed his work there?
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

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