By means of Decree 0370 of 2026, issued by the Ministry of the Interior and now officially published, compensation for infringements of copyright and related rights is regulated, introducing the concept of pre-established compensation as an alternative to the traditional system of damages. In other words, compensation for an amount set by law, without having to prove exactly how much was lost.

Prior to the enactment of this decree, compensation in relation to copyright was governed by the general rules of civil liability. In practice, this meant that the rights holder had to prove not only that damage had occurred, but also the extent of that damage and its link to the infringement. This approach proved particularly challenging in the field of intellectual property, where quantifying damages is often complex and, in many cases, difficult to prove.

What is new about it?

In this context, the decree stipulates that the rights holder may choose, from the outset of the proceedings, either to prove the actual damages incurred or to opt for the pre-determined compensation scheme, in which case it will not be necessary to demonstrate the amount of the damage or the profit made by the infringer. In such cases, it shall be for the competent authority to determine the amount of compensation within the limits set out in the regulations, taking into account the circumstances of the specific case.

It is also provided that the pre-determined compensation covers the full extent of the damages arising from the infringement, with no provision for the award of additional sums for the same cause, and that its award does not depend on proof of malice or fault on the part of the infringer.

According to the considerations set out in the decree, it addresses the need to facilitate the effective protection of copyright, overcome the evidentiary difficulties of the traditional system, promote efficiency in the administration of justice, and bring Colombian legislation in line with international trends that permit pre-determined compensation mechanisms in intellectual property matters.

What are the key benefits?

In terms of its practical implications, the introduction of this concept offers significant advantages. In particular, it significantly reduces the burden of proof on the rights holder when it comes to quantifying the loss, which is particularly valuable in situations where the damage is unclear or difficult to estimate, as is often the case in digital environments. It also improves procedural efficiency by streamlining the examination of evidence and enabling faster and more predictable decisions.

However, it is important to bear in mind that this does not remove the need to provide sufficient evidence of the existence of the infringement and the circumstances surrounding it. Indeed, the quality, consistency and timeliness of the evidence take on crucial importance.

Pre-determined compensation is particularly useful when it is difficult to prove financial loss or when a quicker solution is sought, as it avoids complex examination of the evidence. Conversely, when the loss is substantial and can be clearly demonstrated, it is usually more advantageous to opt for proving the actual damages, as this may result in a higher compensation award.

What would we recommended?  

Copyright holders should manage these rights effectively and pre-empt disputes by adopting best practices within their organisations and businesses regarding the handling of evidence. It is not a good idea to wait until legal problems arise before starting to secure copyright or related rights as an intangible asset of the highest moral and financial value.

In particular, it is advisable to:

1. Document ownership from the early stages.

2. Keep evidence of the creative process that serves to demonstrate the authorship and earlier creation of the work;

3. Take prompt action upon detection of unauthorised use;

4. Gather evidence of the infringement by taking screenshots that include verifiable details such as the date, the full URL and the context in which the work is being used. These can be supplemented by measures that reinforce authenticity, such as digital certificates or notarised documents.

5. The use of technological tools such as time-stamping systems or blockchain-based solutions, which help to demonstrate the existence, integrity and traceability of content at a specific point in time, as supporting evidence.

This is particularly important, as Decree 0370 of 2026 facilitates the quantification of damages based on factors such as the scope, duration and circumstances of the unauthorised use. Therefore, the strength of the evidence remains a key factor in the success of the claim.

Furthermore, pre-determined compensation acts as a stronger deterrent to potential infringers by providing greater certainty regarding the financial consequences of the infringement.

Finally, the inclusion of the pre-determined compensation in Decree 0370 of 2026 represents a significant step forward for Colombia, in that it brings the country closer to international standards, strengthens confidence in its system for the protection of rights, and sends a message of legal certainty to those who invest, set up businesses or conduct business in the country. In that sense, rather than a technical change, this is a step forward that helps to make the rules more predictable, practical and in line with current global expectations.

Written by: Claudia Caro. Director PONS IP Colombia