ECUADOR Law and Practice Contributed by: Arianna Zurita Farías, Annabel Muñoz, Javier Estupiñán and Juan José Flores Rabascall, VIVANCO & VIVANCO
Copyright protection arises automatically from the exact moment of the work’s creation and fixation. Although protection is automatic, registering the work with SENADI is highly recommended. The registration is declaratory rather than constitutive of rights. Its pri- mary advantage is that it grants a legal presumption of authorship, serving as robust evidentiary support that facilitates the defence of the work in infringement cases, commercial negotiations or litigation. 3.3 Authorship and Ownership Under Ecuadorian law, only a natural person (an indi- vidual) can be considered an “author” and thus the original titleholder of moral rights. When two or more natural persons actively participate in the original cre- ation of a work, they are recognised as joint authors. Legal entities or corporations cannot be authors, but they can acquire, hold and exercise patrimonial rights derivatively. The treatment of employee-created works is care- fully regulated to balance labour and creative inter- ests. Unless explicitly agreed otherwise in writing, it is legally presumed that the economic rights to works created during the fulfilment of employment duties are transferred to the employer. This assignment is strictly limited to the customary activities of the employer at the time of creation. For independent contractors and commissioned works, a similar presumption applies: economic rights are presumed transferred to the commissioning party, strictly for the purposes outlined in the contract. None- theless, COESCCI guarantees that the natural author always retains their unwaivable moral rights. Further- more, Ecuadorian law establishes an unrenounceable right for creators to receive equitable remuneration for the exploitation of their work, even if economic rights have been assigned. 3.4 Scope of Rights and Moral Rights Ecuadorian copyright law grants owners exclusive control over the economic exploitation of their works. These economic rights empower the owner to author- ise, prohibit or licence various actions. Prominent rights include: • the reproduction of the work in any format;
• public distribution through sale, rental or lending; • communication to the public, including making works available on digital platforms; and • the translation, adaptation, arrangement or other transformation of the work. The Ecuadorian legal framework is highly protective of moral rights, acknowledging the intrinsic bond between the author and their creation. These rights are perpetual, inalienable, unattachable, imprescripti- ble and unwaivable. Key moral rights include the right of paternity (to claim authorship) and the right of integ- rity (to object to any mutilation or distortion that harms the author’s honour or reputation). Because they are unwaivable, moral rights cannot be commercially assigned, sold or licensed through con- tracts. However, upon the author’s death, the exer- cise of certain moral rights (specifically paternity and integrity) passes to their legal heirs through succes- sion. Heirs hold a statutory mandate to protect the deceased creator’s legacy and reputation. 3.5 Term of Protection and Termination In Ecuador, moral rights are perpetual and never expire. Conversely, economic rights have a defined temporal duration, designed to incentivise creativity and eventually enrich the public domain. The general rule is that economic protection lasts for the author’s entire life and extends for seventy years after their death, calculated from the first of January of the year following their passing. Ecuadorian regulations provide mechanisms to pro- tect authors against the inactivity of assignees. If an author assigns their exploitation rights, but the assignee breaches essential obligations (e.g., failing to publish the work within the agreed timeframe or unjustifiably withholding royalties), the author may demand the termination of the contract. This results in the automatic reversion of the economic rights back to the original creator. Separate from economic reversion rights, the law rec- ognises the moral right of withdrawal. This allows an author to withdraw their work from circulation due to a change in their intellectual or moral convictions.
88 CHAMBERS.COM
Powered by FlippingBook