Argentina

Submitted by consumidores ar... on Wed, 25/02/2009 - 21:23

Legal background

Copyright legislation	National Law Nº 11.723 Intellectual Property Law ("IPL")
Patent legislation	Law N° 24.481License and Patent ("LP")
Other relevant laws	National Constitution ("NC")
	Halabi vs Poder Ejecutivo Nacional s/Amparo Law 25.873 ("Halabi")
	Penal Code ("PC")
	Dec/Law 1224/58 ("DLA")
	Law Nº 26.570 Modify Law 11.723 ("MIPL")
	Law Nº 26.388 Computer Crime ("CCL")
	Law Nº 26.285 Free License for Blind and Disability ("FLBD")
	Law Nº 25.326 Personal Database Protection ("PDPL")
	Law 24.240 Consumer Protection Law ("CPL")
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WIPO Internet treaties	Paris Convention
Other treaties and trade agreements

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention?	No Literary, artistic scientific and educational works are protected for 70 years from the author’s death, or in the case of corporations or societies 50 years from first publication. Law 26.570 modified IPL adding 70 years protection to artists and interpreters of phonograms.	IPL and MIPL
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders?	In part These safeguards do not exist in the copyright law, and Argentina's 1999 competition law has not been used against IP holders. Its patent law does include provision for compulsory licensing in cases of non-exploitation and anti-competitive practices.	LP
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	Yes The Constitution literally guarantees freedom of political speech, which could in appropriate cases prevail over copyright law.	NC
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right?	No	PDPL
Are rights holders prohibited from excluding user rights under copyright law?	No
Is computer software excluded from the scope of patentable subject matter?	Yes	LP

Freedoms to access and use

By Home Users	Is there any general user right that is based on a set of balancing criteria, such as a "fair use" right?	No	IPL
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	No	IPL
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	In part Only one copy from the original software as a backup in case of damage, where the user has paid for the licence.	IPL
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	No	IPL
For Education	May students copy works for private research or study?	In part Reproduction is limited to a number of 1000 words in scientific and literary material, or 8 measures in music, and only the required essential parts.	IPL
	Does any such research and study provision cover distance and online education?	No	IPL
	May translations of works be made for educational purposes?	No	IPL
	May educators copy works for use in the classroom?	In part Reproduction is limited to a number of 1000 words in scientific and literary material, or 8 measures in music, and only the required essential parts.	IPL
Online	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	No	IPL
	Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network?	No There is no specific provision on ISP liability.
	Is Internet access free of ISP filtering or monitoring for potential copyright-infringements?	Yes
By content creators	Is there any protection for consumers who non-commercially remix or mash up copyright works?	No	IPL
	May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software?	Yes You can make only one copy for backup purpose, and reverse-engineering is not prohibited specifically.	IPL
	Is the incidental inclusion of a work in other material permitted?	In part As a quotation and indicating the author and the original source.	IPL
	Is there are copyright exception for parody or satire?	No	IPL
By the press	Is there a copyright exception for the news of the day?	Yes	IPL
	May copyright material be reproduced for the purposes of review and criticism?	In part Only 1000 words and 8 measures where indispensable and not constituting the substantial part of the work.	IPL
	May quotations be used for any purpose?	In part Only for educational or scientific purposes.	IPL
By Libraries	May libraries copy works if they cannot reasonably be obtained commercially?	No	IPL
	May librarians copy works for users for the purpose of research or study?	No	IPL
	Are libraries allowed to make preservation or archive copies of materials in their collections?	No	IPL
	Can lending libraries operate without incurring public lending rights fees to copyright owners?
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	In part Only by authorized institutions.	FLBD
In public affairs	Are laws excluded from copyright?	Yes
	Are other governmental works either excluded from copyright, or routinely shared under permissive licences?	Yes Judicial Acts, for example.
	Are the results of publicly funded research required to be published under an open access licence?	No

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	$30.000 (Argentine money), or imprisonment for up to 6 years or both	IPL
What is the maximum penalty for copyright infringement for a corporation?	Not limited	IPL
Is innocent infringement of IP treated differently by the law?	No Only the Courts made the distinction	IPL
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes?	No
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights?	No	IPL and PC
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers?	Yes Consumer’s Law protects the right of information.	CPL
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds?	No
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court?	Yes ISPs can not inform about infringement without a judicial order
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	No	IPL and JA
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award?	Yes	IPL
Is there provision to penalise the wrongful allegation of copyright infringement?	Yes	PC
Is there provision to penalise the obstruction of consumers' exercise of user rights?	No
Does the patent system allow for pre-grant opposition?

Recent or upcoming changes

Summary of position

The Argentinean copyright system is very restrictive, not including exceptions for personal or familiar reproduction of music, movies and backups, or for educational purposes. Only the Courts make a distinction between personal use and profit purposes in penalising infringement.

The cost of original software makes it inaccessible for consumers and the only option they have is to buy it in black markets. The prevalence of such markets has made Argentina vulnerable to criticism from developed country rights holders. On the positive side, the Argentinean legislature has resisted the introduction of new legislation that would have strengthened criminal enforcement of intellectual property rights.

There is not much awareness within Argentina about IP alternatives such as open source and open access licensing.

This work is licensed under a Attribution Share Alike Creative Commons license

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used?	Yes	IPL
Can public domain works be used without the need for any payment or registration of the use?	No In Argentina exists a "public paying domain"	DLA
Does the law make special provision for the legal use of orphaned works?	Yes Orphaned works are considered released into the public domain.	IPL
Is parallel importation of copyright works permitted?	Yes	TRIPS
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources?	Yes In National Policy, but weak
Are there national programmes or policies that specify or promote the use of open document formats?	No

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