Chile

Legal background

Copyright legislation	Intellectual Property Law (Law N° 17.336) From http://www.wipo.int/clea/en/text_html.jsp
Other relevant laws
Copyright treaties	Berne Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention?	NO Due to the Free Trade Agreement with the United States of America, the minimum of the period of protection is of 70 years and not 50, as was stated in the Berne Convention.
Must a work be fixed in some material form before copyright attaches?	NO Copyright is granted from the very moment of the creation of the work.
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power?	YES Chilean Competition Law states that anyone who carries out or enters into, individually or collectively, any conduct, act or agreement that hampers, restricts or hinders free competition or that tends to produce such effects, will be sanctioned with the measures contemplated therein. A case in which copyright holders misuse their monopoly power, will be analyzed by the Antitrust Court on a case by case basis.
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	YES Copyright is itself part of the bill of rights. Therefore, each right guaranteed in that bill acts as a limit to each other. Thus, the exercise of copyright must comply with the bill of rights contained in article 19 of the Chilean Constitution.
Does the compilation of a database of non-original material fall outside the scope of copyright?	NO In order to fall within the scope of the intellectual property law a compilation must meet certain conditions. In consequence, a compilation must be such that it can be considered by itself as a new intellectual creation. However, this protection does not cover the data itself.
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	NO The Law establishes certain rights that cannot be waived (i.e. editing contracts). In general terms (besides the exceptions mentioned above) limitations to copyright may be established through contracts. However, up to date, there are no judicial precedents concerning these matters.

Freedoms to access and use

By Home Users	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	NO Unless expressly permitted by the copyright owner. Any other type of modification may be considered either as an adaptation or a transformation, and therefore requires express authorization to be executed.
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	LIMITED The law allows the rightful owner of a software to copy or reproduce material exclusively for back up purposes and only if such copy is essential for the use of a computer and it is not used for a different purpose. However the above is not in respect to copyright works which are not software.
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	YES There is an exception to copyright that allows communication within the family group or within educational, charitable or similar institutions, as long as this communication is performed without intent to make profit.
	In any other cases may reproductions be made on a private, noncommercial basis, for example through peer-to-peer file sharing?	NO A modification to the current intellectual property law that establishes the three step test is being discussed at Congress, although it is not certain that this specific provision of the bill will be approved as law, since it has raised numerous debates.
	Are blank media and computer hardware sold free of compulsory levies collected for copyright owners?	YES
For Education	Is reproduction permitted for the purposes of research or study?	YES The law allows reproducing in cultural, scientific or didactical works, portions of works protected with copyright, making reference to the source, name of the work and author.
	Is it permissible to copy an entire work and to make any number of copies?	NO
	Does any such research and study provision cover distance and online education?	NO
	May translations of works be made for educational purposes?	NO A modification to the intellectual property law that permits the translation of copyright works under certain conditions (i.e. a period of time from its publication) is being discussed at the Congress
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	NO
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES However this is an area not regulated by Chilean law.
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	NO Nevertheless, a modification to the intellectual property law that contemplates an exception for these copies is currently being discussed at the Congress.
	Is caching of Web content permitted?	NO This matter is not specifically regulated in Chilean intellectual property law. A modification to the intellectual property law regulating the caching is being discussed at the Congress. The proposed modification establishes that the temporary copy of a work, including its temporary digital storage, is permitted. However, this copy must be indeed temporary, not have a commercial significance by itself, be an integral part of a technological process and have the sole purpose of allowing a lawful transmission within a net or to permit a rightful use of a protected work. Besides this exception, the project being discussed establishes a general exception regarding the three step test, which would cover the act of caching.
	Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances?	YES It is a matter not regulated, but it has been the opinion of the courts so far that the law does not impose liability upon intermediaries. A modification to the intellectual property law that establishes a safe harbour system is being discussed at the Congress.
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	YES There is no obligation for the ISP on this regard. Furthermore, inviolability of communications is a constitutional right granted to everyone. Therefore, the ISP cannot perform this filtering without express legal authorization, which doesn’t exist currently.
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	YES This information is protected from disclosure. There is no obligation for the ISPs to report these situations. Additionally, according to Chilean data protection law, personal information cannot be handled in any way unless allowed to do so by the data subject or the law. Nevertheless, personal information may be disclosed in compliance with a court order.
By content creators	Can a recording or performance of a musical work be made under compulsory license from the composer?	NO Chilean intellectual property law does not have a provision for compulsory licenses.
	Can copyright works be non-commercially remixed or mashed up into new works?	NO Any of those actions would be considered as a transformation of the work, according to the intellectual property law, and any transformation requires express authorization of the copyright owner.
	May computer software be reverse engineered for the purpose of creating interoperable software?	YES Currently this is not regulated. Based on today’s regulation, it is possible to reverse engineer software to create an interoperable one. However, this interoperable software must be a completely new work that is used for the interoperability of other software. If the new software is merely a modification of the software that was reverse engineered, then it is not allowed to do so. A modification to the intellectual property law that contemplates this situation is being discussed at the Congress.
	Is the incidental inclusion of a work in other material permitted?	NO The authorization of the copyright owner is required, unless the incidental inclusion falls within the conditions in order to be considered as a quotation exception.
	Is there are copyright exception for parody or satire?	NO
	Is there a copyright exception for professional advice?	NO
	Do creators who license their work retain the moral right of attribution?	YES Always. The author has an unwaivable right to the attribution of his work.
	Does copyright law contain provisions regarding traditional knowledge/folklore?	YES While defining “artist, interpreter or performer”, the intellectual property law states that it is “the actor, broadcaster, narrator, declaimer, singer, dancer, musician or any person who plays or performs an artistic or literary work or folklore expressions”. However, the same law states that folklore expressions are considered to be of public domain. Therefore, copyright is granted to the performances of folklore, but not to the folklore itself.
By the press	Is there a copyright exception for the news of the day?	NO
	May copyright material be reproduced for the purposes of review and criticism?	NO A modification to the current intellectual property law that enables the use quotations for review or criticism purposes is being discussed at the Congress.
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	YES Speeches and conferences may be published for information purposes. However, they cannot be published in a separate collection, whether complete or partial, without the author’s permission.
	May quotations be used for any purpose?	YES Quotations may be used for cultural, scientific or educational works, as long as the source, title and author are clearly specified.
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	NO A modification to the intellectual property law that establishes this exception is being discussed at the Congress. The proposed modification establishes that a library may copy a work, for the purpose of adding it to its collection, if said work has not been commercially available for the past 5 years.
	May libraries copy works for users for the purpose of research or study?	NO A modification to the intellectual property law that establishes this exception is being discussed at the Congress. The proposed modification establishes that libraries may copy fragments of works in their collections, as requested by a user, exclusively for the personal use of the latter. As well, libraries may copy and make digitally available, within the institution’s facilities, works from its collection to be consulted for a reasonable number of its users.
	Is the reproduction of unpublished works by libraries permitted?	NO
	Are libraries allowed to make preservation or archive copies of materials in their collections?	NO A modification to the intellectual property law that establishes this exception is being discussed at the Congress. The proposed modification establishes that a library may copy of a work for the purpose of substituting a work: (i) from its own collection when said work has been lost or deteriorated, and (ii) from another library or archive when said work has been lost, destroyed or otherwise rendered useless, as long as said work is not commercially available.
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	NO A modification to the intellectual property law that establishes this exception is being discussed at the Congress.
In public affairs	Are laws excluded from copyright?	NO
	Are other governmental works excluded from copyright?	NO
	Is there a copyright exception for use of material in judicial proceedings?	NO

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	Depending on the infringement, the penalty may vary between a US $2,600 fine and 540 days in prison (or 3 years in case of recidivism recurrence), and a US $5,200 fine.
What is the maximum penalty for copyright infringement for a corporation?	Corporations do not have criminal responsibility under Chilean law. A corporation shall only be responsible for the civil damages its actions may cause.
Is registration of copyright required before it may be enforced in court?	NO Not in general terms. However, regarding editing contracts, the editor will only be able to enforce his rights after the registration of said editing contract.
Is there a distinction between personal versus (large-scale) commercial use?	YES For the purposes of penalizing piracy.
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright?	YES This is not regulated by the law, therefore it is permitted.
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	YES This is not regulated by the law, therefore it is permitted.
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material?	YES This information can be considered as relevant information for the consumer. Suppliers are obliged to provide truthful and timely information to the consumers, in connection with the relevant characteristics of products or services.
Are the operations of copyright collectives subject to public oversight?	NO
Is any portion of the revenues of copyright collectives set aside for benevolent purposes?	NO
Are copyright collectives precluded from using their revenues for political lobbying?	NO
Is copyright enforced only through mechanisms provided by law, rather than through private intermediaries?	NO The majority of copyright infringement actions are exercised by copyright collectives, private intermediaries under Chilean law.
Is the enforcement of copyright restricted to civil or private law, rather than attracting criminal sanctions?	NO There are also criminal sanctions applicable to copyright violators.
Are damages for copyright infringement based on the loss sustained, rather than by a preestablished or statutory damages award?	YES This subject is not specifically regulated by the intellectual property law, so the general rules apply. For this reason, any damages claim may include loss of profits, material and moral damages.
Is there provision to penalise the wrongful allegation of copyright infringement?	LIMITED There is no specific provision in this regard for copyright matters. However, calumnious accusations can be declared by a judge as a criminal offence.

Conclusions

As mentioned in many items of this questionnaire, there are many subjects that have not been regulated by Chilean Intellectual Property Law up to date.

However, there is a new bill intended to modify and update the Intellectual Property Law, and which will regulate in detail matters that are not currently part of Chilean legislation. In this sense, one of the main purposes of this bill is to make compatible the proper protection of copyright and its related rights, with the community’s legitimate access to new creations, including arts and knowledge. Based on the above, some modifications include certain limitations and exceptions regarding the legal protection to copyright and related rights in benefit of the community. This bill responds to the need to modernize the legislative mechanisms currently available to allow a stronger protection to creators and to the industry related with intellectual creations.

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May copyright works be freely offered for commercial rental?	YES
May a person in lawfully possession of a copyright work distribute, communicate or make it available without reference to the copyright owner?	NO A lawfully possessed copyright work may be freely distributed, but cannot be communicated or made available in any other way without the copyright owner’s permission. However, in any case the work must always be related with the author’s name, regardless of who is the copyright owner.
May works be dedicated to the public domain without legal formality besides an overt act of relinquishment?	YES
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain?	NO Orphaned works as such are not regulated in Chilean law, therefore general rules apply. Thus, if the author is unknown, then the work is released into the public domain; but if the author is known and only the copyright holder is untraceable, then copyright still applies normally.
Is parallel importation permitted?	YES Chilean intellectual property law states that the first sale or assignment of a copyright work, executed in Chile or anywhere in the world, expires the distribution rights regarding that copy, both national and international. Chilean antitrust authorities have expressly permitted import of original products into Chile notwithstanding the existence of authorized and exclusive distributors or licensees in the country.
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy?	NO
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy?	NO

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