MEXICO Law and Practice Contributed by: Victor Adames, Carlos Hernandez, Paola Becerril and Eduardo Saldaña, BC&B Law & Business
with evidence beyond a reasonable doubt to be effective. If proven, these defences can consti - tute total bars to liability. 9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) The fair use doctrine allows the use of copy - righted works without the owner’s consent under certain circumstances; however, this doctrine is not applicable to trade marks. This doctrine must be analysed within the frame - work of the Berne Convention, which establishes that fair use is only applicable in specific sce - narios where it does not harm the rights of the author, economic holders, or the work itself, and does not interfere with its normal exploitation. The FCL provides a list of limitations under which copyright use may not constitute infringement. Therefore, when invoking fair use in Mexico, both the Berne Convention and the FCL must be carefully analysed to determine whether the specific case qualifies. There are no exceptions to copyright infringe - ment based on satire or parody. In a notable precedent, the Supreme Court of Justice (SCJ) ruled that parody could not be considered an exception to copyright infringement, even under the principle of freedom of speech. The SCJ determined that authorisation from the copyright owner was required to create and distribute a parody, and failure to obtain such authorisation constitutes infringement. Mexico does, however, recognise the right to free speech or information as an exception to copyright infringement. For this exception to apply, the same factors as those outlined under the fair use doctrine must be met. These include ensuring that the use does not harm the rights of the owner or the normal exploitation of the
work. A thorough analysis is required to deter - mine whether the specific case qualifies under this exception. In the case of registered trade marks, Mexico has recognised the right to use a trade mark to compare products or services with the purpose of informing the public, provided that such com - parison is not misleading, false, or exaggerated according to the terms of the Federal Consumer Protection Law. 9.3 Exhaustion For registered trade marks, the FLPIP estab - lishes that a registration shall not produce any effects against any person who markets, distrib - utes, acquires, or uses the product to which the registered trade mark applies, after the product has been lawfully introduced into commerce. Even though in there is a type of exhaustion of copyright rights based on the doctrine of first sale, it is subject to limitations that must be care - fully considered to avoid engaging in infringe - ment. This doctrine grants the buyer complete ownership of the specific product that has been acquired, and that is protected under a copy - right, such as a book. However, while the owner is permitted to alter the item for personal use, actions such as reprinting for resale, or any oth - er activities that harm the intellectual property holder’s rights are prohibited. Regarding digital content, the exhaustion doc - trine is more limited due to licensing agreements and the use of blockchain, which often prevent the transfer or resale of digital copies.
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