Argentina

Wed, 25/02/2009 - 21:23 — consumidores ar...

Legal background

Copyright legislation	National Law Nº 11.723 Intellectual Property Law ("IPL") From http://www.wipo.int/clea/docs_new/en/ar/ar012en.html
Other relevant laws	National Constitution ("NC") From http://www.argentina.gov.ar/argentina/portal/documentos/constitucion_ingles.pdf
	Halabi vs Poder Ejecutivo Nacional s/Amparo Law 25.873 ("Halabi") From http://www.cpacf.org.ar/fallos/Halabi%20de%20Camara.doc
	Penal Code ("PC")
	Law N° 24.481License and Patent ("LP")
	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	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 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
Must a work be fixed in some material form before copyright attaches?	YES	IPL
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?	LIMITED 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
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 The Constitution literally guarantees freedom of political speech, which could in appropriate cases prevail over copyright law.	NC
Does the compilation of a database of non-original material fall outside the scope of copyright?	NO	PDPL
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	YES	IPL

Freedoms to access and use

By Home Users	Is there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria?	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?	LIMITED 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
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	YES	IPL
For Education	Is reproduction permitted for the purposes of research or study?	LIMITED 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 works be reproduced and published by educational institutions in connection with systematic instructional activities?	NO	IPL
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	NO	IPL
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	NO	IPL
	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?	NO There is no specific provision on ISP liability.
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	YES
	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 By a Judicial Act of the Supreme Court.	Halabi
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	NO	IPL
	May computer software be reverse engineered for the purpose of creating interoperable software?	NO	PC and CCL
	Is the incidental inclusion of a work in other material permitted?	LIMITED As a quotation and indicating the author and the original source.	IPL
	Is there are copyright exception for parody or satire?	NO	IPL
	Do creators who license their work retain the moral right of attribution?	YES	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?	LIMITED Only 1000 words and 8 measures where indispensable and not constituting the substantial part of the work.	IPL
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	LIMITED Only daily news	IPL
	May quotations be used for any purpose?	LIMITED Only for educational or scientific purposes.	IPL
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	NO	IPL
	May libraries 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
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	NO	IPL
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	LIMITED Only by authorized institutions.	FLBD
In public affairs	Are laws excluded from copyright?	YES
	Are other governmental works excluded from copyright?	YES Judicial Acts, for example.
	Is there a copyright exception for use of material in judicial proceedings?	NO
	Are the results of publicly funded research required to be published under an open access license?	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
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	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 purposes that would not infringe copyright?	NO
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	NO	IPL and PC
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 Consumer’s Law protects the right of information.	CPL
Are the operations of copyright collectives subject to public oversight?	YES The National Institute of Intellectual Property	IPL
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online?	NO
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO	IPL and JA
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	YES	IPL
Is there provision to penalise the wrongful allegation of copyright infringement?	YES	PC

Conclusions

The Argentinean copyrightⁱ 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 softwareⁱ 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 IPⁱ alternatives such as open source and open accessⁱ licensing.

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

May copyright works be freely offered for commercial rental?	LIMITED Not shifting title, shape and content with a special mention for software and music operation that must include the terms of the licence of reproduction and/or use.	IPL
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment?	YES	IPL
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?	YES Orphaned works are considered released into the public domain.	IPL
Is parallel importation permitted?	YES	TRIPS
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy?	YES In National Policy, but weak
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
Are there specifications or incentives in national law/policy for the use of open document formats?	NO