ECUADOR Law and Practice Contributed by: Arianna Zurita Farías, Annabel Muñoz, Javier Estupiñán and Juan José Flores Rabascall, VIVANCO & VIVANCO
3.6 Limitations, Exceptions and Defences Ecuadorian law provides for statutory limitations and exceptions that allow the use of protected works without the author’s authorisation, provided certain conditions are met. These include, among others, quotations for purposes such as research, criticism or news reporting, subject to proper attribution of the author and source. Other permitted uses may include transformative uses such as parody, as long as they do not create confu- sion with the original work or cause unjustified harm, as well as limited reproduction for personal and pri- vate purposes, provided there is no direct or indirect commercial intent. In practice, courts and administrative authorities inter- pret these exceptions in line with the “Three-Step Test” under the Berne Convention, which forms part of the applicable legal framework. Under this stand- ard, the use must: • fall within a specific exception; • not conflict with the normal exploitation of the work; • not unreasonably prejudice the legitimate interests of the right-holder; • be expressly covered by a special case outlined in the statute; • not conflict with the normal exploitation of the work; and • not unreasonably prejudice the legitimate interests of the rights-holder. 3.7 Copyright Enforcement and Remedies Copyright infringement in Ecuador generally includes the unauthorised reproduction, distribution, com- munication to the public or transformation of a pro- tected work, unless a statutory limitation or exception applies. This may cover both physical and digital uses, such as the unauthorised use of software, audiovisual content or other protected materials. Enforcement may be pursued through both adminis- trative and judicial channels. SENADI has authority to hear infringement actions and may order measures such as the cessation of infringing acts, inspections and the seizure or removal of infringing goods. Pre-
cautionary measures are also available to prevent the continuation of the infringement. Civil courts may award damages and other remedies, typically based on criteria such as the right-holder’s losses, the infringer’s gains or a reasonable licence fee. In more serious cases, particularly where infringe- ment is carried out on a commercial scale, criminal liability may arise, including fines and, in certain cir- cumstances, imprisonment under applicable criminal legislation. 3.8 Infringement Tests and Substantiality Ecuadorian copyright law protects the expression of a work, not the underlying ideas, methods or func- tionality. In the case of software, protection extends to computer programmes as literary works, including at least source code and object code. When assessing infringement, the analysis should focus on whether the defendant reproduced origi- nal protected elements of the work, rather than on a purely quantitative comparison. In software cases, this may include literal copying and, in some circum- stances, non-literal copying, to the extent that what is taken reflects the author’s original expression rather than purely functional, technical or standard elements. Given the technical complexity of these disputes, expert evidence is often important in helping courts or SENADI assess similarities in code or programme structure and determine whether they stem from unlawful copying or from functional constraints, inter- operability requirements or industry standards. 3.9 Collective Management and Licensing In Ecuador, collecting societies operate under the strict supervision and authorisation of SENADI. They are non-profit organisations responsible for collecting and distributing royalties. They are legally required to publish their by-laws and distribution rules, and nego- tiate agreements with user associations. Tariffs set by these societies must adhere to the principles of pro- portionality, fairness and transparency. They cannot be established arbitrarily and must reflect the actual revenue the user derives from exploiting the work.
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