MEXICO Law and Practice Contributed by: Eduardo Kleinberg, Adolfo Athié, Claudio Ulloa and Juan Carlos Hernández, Basham, Ringe y Correa S.C.
3.2 Requirements for Copyright Protection Any work that is original is protected from the moment of fixation. However, it is also possible to register copyright and related agreements before the National Copyright Institute to facilitate enforcement. 3.3 Authorship and Ownership The author is the individual that creates the work and must always be recognised as such, even if the copyright is owned by someone else. Works created by employees as part of their employment duties are governed by the respective employment agreement. In the absence of specific contractual provisions, the ownership of the copyright will be split at 50% between employer and employee. If a work is created on commission, the copyright will be owned by the individual or entity commissioning the work. In the absence of written documents, the law will pre- sume that the copyright fully belongs to the author. It is important to document the relationship between the parties if a legal entity is to claim the copyright ownership. 3.4 Scope of Rights and Moral Rights The owner of the copyright is entitled to decide on any form of exploitation such as copying, public com- munication or the publishing of derivative works. The owner of the copyright may also be entitled to receive royalties for the public communication of the work. The author has moral rights in respect to disclosing the work, paternity and opposing actions that may damage the reputation of the work or the author. If the work is made for hire, then the individual or entity commissioning the work will have the right to disclose it and to protect its reputation, but the author still has to be recognised as such. The moral rights cannot normally be assigned and may be exercised by the author’s heirs upon death. 3.5 Term of Protection and Termination The term of protection is 100 years from the death of the author. If this cannot be determined because the work is pseudonymous or anonymous, the term runs from 100 years from publication. If the work has
multiple authors, the term does not start running until the death of the last surviving author. Assignments of copyright in Mexico for works other than software must be for a specific timeframe. The law will presume a duration of five years in the absence of a contractual provision. A term of more than 15 years can only be convened with a valid cause, such as the investments to be made in communicating the work. 3.6 Limitations, Exceptions and Defences Exceptions are limited and statutory. There is no gen- eral “fair use” defence. In general, the exceptions are the quotation of texts, the reproduction of works visible from public view, the partial reproduction for research and non-profit publishing for persons with disabilities. 3.7 Copyright Enforcement and Remedies Any exploitation of a work made for direct or indirect profit, including the exploitation of derivative works, may constitute copyright infringement. Such cases are normally brought before the IMPI, which may issue temporary or permanent injunctions (including block- ing orders) and fines. In addition, if infringement is found, the owner of the copyright will be entitled to an award for damages of at least 40% of the sales price to the public of each infringing product or ser- vice provided. If a price cannot be determined, then the damages will be calculated on the basis of expert testimony on subjects such as the market value of a licence over the infringed copyright. Civil and criminal proceedings are also possible. The Federal Criminal Code classifies certain forms of infringement as federal crimes and a complaint could be filed with a public prosecutor. Also, public prosecu- tors can also pursue a conviction ex officio in certain cases. 3.8 Infringement Tests and Substantiality Copyright does not protect ideas themselves, but only the way in which they are expressed: more than mere non-literal copying would be required. For software, coincidences in codes, interfaces, etc, would likely be required to successfully claim infringement and not just structure, sequence or organisation.
221 CHAMBERS.COM
Powered by FlippingBook