On July 1st, 2020 a Decree entailing several amendments to Mexico’s Intellectual Property regulatory framework was published in the Federal Official Gazette.
We will discuss some amendments of the Federal Copyright Law and the Federal Criminal Code regarding copyrights, which became effective the day after publication.
These amendments respond to the need to adjust the national legal system simultaneously with the entry into force of the Treaty between the United States of America, Mexico and Canada (USMCA).
The amendments to the Federal Copyright Law and Federal Criminal Code strengthening the legal framework that protects copyrights and related rights holders in Mexico who are facing the onslaught of information technologies and find it increasingly complicated to defend their rights in digital media, mainly because the internet allows easy access to and infringement of copyrighted content.
In this context, we have listed below the amendments that we consider the most important:
1. The concept of Public Communication is redefined, and the Making Available Right whose full inclusion in Mexican Law had been under debate several times, is now included more in various parts of the Law. The text of the Law is harmonized with the provisions of the USMCA and other International Treaties on copyright (as WCT and WPPT), considering the Making Available Right concept as an authorization from the holder, based on the possibility of access to work or content by placing it on any physical or digital site, without actual access to it being necessary.
2. The Economic Right empowers the holder to authorize or prohibit public communication of computer programs. This is considered risky due to the interpretation that can be given to such articles, mainly with regard to the use of licensed programs, since security measures must be enforced to avoid any act of unauthorized public communication, even taking into account any act that makes them available in the cloud.
3. Certain articles with a broader catalogue of Technological Protection Measures (TPM) are included, specifically defining them as any technology, device or component that in the ordinary course of operation, protects copyright, the performer’s right or a phonogram producer’s right, or that controls access to a work, a performance or execution or a phonogram. This is a big step forward in this area, since specific actions were also included to penalize the circumvention or evasion of such measures by third parties.
4. The powers of holders of related rights, specifically artists, interpreters and performers are broadened in Article 118, including the power to authorize or prohibit distribution, public communication, the right to make available and commercial leasing of their performances, which also applies to producers of phonograms;
5. Article 131 also broadened the powers of phonogram producers, including the power to authorize or prohibit the distribution of copies, the right to make available and public communication of their phonograms;
6. Article 145 of the Federal Copyright Law contemplates new assumptions that establish liability to cover damages and losses caused by unauthorized use of or access to signals. Specifically, the following assumptions were included: (1) anyone who manufactures, modifies, imports, exports, sells or otherwise distributes a device or system to decode a program-carrying encrypted satellite signal; anyone who receives or distributes a program-carrying encrypted satellite signal (in this case the condition that it was unlawfully decrypted was removed); anyone who receives or helps another receive a program-carrying encrypted cable signal and, anyone who manufactures or distributes equipment for the unauthorized reception of program-carrying encrypted cable signals.
7. A relevant change in this amendment is that finally article 214 clarifies that the Federal Administrative Justice Court is competent to hear claims against a record, annotation or inscription issued by INDAUTOR (Mexican National Copyright Institute), in which INDAUTOR must always be a party.
8. One of the most relevant changes included in this amendment is the definition and establishment of liability of Internet Service Providers (ISPs), considering such as the person who transmits, routes or provides connections for digital online communications, without content modification, between the points specified by a user of the material selected by the user, or that performs intermediate and transient storage of such material, done automatically in the course of transmission, routing or supply of connections for digital online communications. It should be noted that ISPs have NO participation in the content that users transmit over the Internet, they only provide the way of access for which this amendment will surely have several relevant aspects that will be contested or objected by ISPs, mainly in connection with the articles that establish certain assistance obligations for ISP in defense of copyright.
9. While the law seems to exempt ISPs from the actions undertaken by network users, the truth is that the amendment initially assigns them the burden of proof, since they must now evidence that they did not "control, initiate or direct infringing conduct" with regard to copyrighted content, which is not only negative, but imposes an excessive and disproportionate burden on them. The content of the specific article omits to address the "neutrality" and "passivity" of ISPs and their influence under the "SafeHarbour" model.
10. Under the amendment, Internet Service Providers are now required to terminate or block access to content through their networks with the mere statement of those who consider themselves to have rights over the works, which obviously places an additional burden on ISPs, who previously had no obligation and had precisely defended the overload of this type of work.
11. Within the catalogue of trade infringements, the scope of sections I and III of Article 231 is extended, establishing not only the penalty for public communication or public use in the case of section I, but also including the right of making available; in the case of section III, such right of making available is also included within the penalized conduct, thereby broadening the scope of such infringements, mainly in a digital environment;
12. Amongst most relevant amendments to the Federal Criminal Code is the inclusion of the felony known as "Camcording", i.e., a specific type of felony within article 424 bis, which provides a penalty of three to ten years of prison and a fine of two thousand to twenty thousand days of daily minimum wage to anyone who records, broadcasts or makes a total or partial copy of a protected cinematographic work, shown in a cinema or similar venue, without the authorization of the copyright or related rights holder.
13. The catalogue of felonies relating to deciphering encrypted cable or satellite signals is broadened under Article 426; in addition, the unauthorized circumvention of any technological protection measure relating to copyright or related rights is included as a felony;
The above-mentioned additions and amendments will pose new challenges and trials for the protection of copyright and related rights holders and intermediaries. We will be following the cases and criteria that arise with respect to their application.
Please contact us if you have any questions or comments relating to the foregoing.