There is a widespread misconception that the National Copyright Office (ONDA) is a deconcentrated body of the Ministry of Culture. To address this, we will borrow part of the title from an article written by the jurist Olivo Rodríguez Huertas, "ONAPI, autonomous agency, decentralized body" (Gaceta Judicial, August 30, 2006), to present some arguments that support the fact that ONDA is an autonomous, decentralized agency of the State.
The Organic Law of Public Administration No. 247-12 (hereinafter Law 246-12) distinguishes between autonomous agencies and administrative bodies. Autonomous agencies are entities with legal personality under public law, holders of public competences and prerogatives, while administrative bodies "are the administrative units authorized to exercise on behalf of public entities the competences attributed to them." (Article 6).
The Article 70 of Law 247-12 states that deconcentration implies the "distribution of competence within the same entity". Therefore, deconcentrated bodies do not have legal personality, their own assets, or administrative autonomy. They cannot decide their own fate, as the superior hierarchical body, being responsible for their actions, can direct their entire course of action.
The question that heads this article is therefore not idle. Accepting that ONDA is a deconcentrated body of a Ministry implies its administrative subordination to another body, in this case the Ministry of Culture, since, like any deconcentrated body, it would be governed by the principle of hierarchy of Law 247-12 in its Article 12.15, which states that "...Subordinate bodies shall be subject to the direction, supervision and control of the superior bodies of the Public Administration with competence in the respective matter, administrative bodies may direct the activities of their hierarchically subordinate bodies through instructions and orders..."
The idea that ONDA is a deconcentrated body of the Ministry of Culture is often based on Article 6 of Law 41-00, which established the Ministry of Culture and included ONDA among the deconcentrated bodies of that Ministry.
It turns out that Law 41-00 is not the current legal regime governing the administrative organization of ONDA, as it was repealed in that aspect by Law 65-00 of August 21, 2000, which established in its Article 194 the following: "This law repeals and replaces 1) Law 32-86 on Copyright of July 4, 1986" and "3) all other laws that are contrary to it."
Law 65-00 establishes a new administrative scheme for Copyright, under which the organization and administration of this right is the exclusive responsibility of the Copyright Unit (Unidad de Derecho de Autor). The ONDA that existed under Law 32-86 and Law 41-00 no longer exists.
The regulations of Law 65-00, Decree 362-01, Article 104, entrusts the Copyright Unit to a new ONDA, and this time it would be "attached" to the Ministry of Culture.
When ONDA is "attached" (adscrita) to the Ministry of Culture, its legal regime covers Article 141 of the Constitution and Articles 50 and following of Law 247-12, which regulate the relationship between ministries and the autonomous agencies that are attached to them. This is a relationship where there is not an absolute hierarchical subordination of the attached agency to the ministry, although there is a role of oversight and guardianship on the part of the Ministry.
Rodríguez Huertas, in the article cited, understands that if an agency is attached (adscrito) to a ministry, it cannot at the same time be hierarchically subordinate to it, as these two administrative situations are mutually exclusive. If it is attached, it cannot be deconcentrated, and if it is a deconcentrated entity, it cannot be an attached body.
It is necessary to understand that the relationship of attachment (adscripción) between autonomous agencies and ministries is different from the hierarchical dependency relationship of deconcentrated bodies. Every attached entity is governed by Article 52 of Law 247-12 and Article 141 of the Constitution, while deconcentrated bodies are under the principle of hierarchy of Article 12 of the aforementioned Law.
The Constitutional Court in its ruling TC/0304/14 has established that "decentralized agencies... are entities created by law issued by the Congress of the Republic, but they can also be created by decree of the Executive Branch; their main distinction from deconcentrated bodies is that they have their own legal personality and assets, whatever the legal structure they adopt. 11.10. Additionally, it should be emphasized that decentralized agencies... are specifically regulated by the law or decree that created them..."
According to the Constitutional Court (TC), a decentralized agency (organismo descentralizado) can be created by decree, and it is distinguished from a deconcentrated body (órgano desconcentrado) in that the former has its own legal personality and assets, while the latter does not.
The regulations of Law 65-00, in its Article 106, part in fine, state that ONDA is an autonomous agency, indicating that it possesses "technical, functional and administrative autonomy..."
It is known that when an entity is recognized as having autonomy, it tends to thrive and perform its function more efficiently. In the case of ONDA, there are good reasons to understand that it is an autonomous agency. Hopefully the authorities of the Ministry of Culture will reflect on the arguments presented and change their attitude towards ONDA, before the damage being caused to Copyright in our country becomes irreparable.