Chile

Thu, 12/03/2009 - 05:57 — claudioruiz

Legal background

Copyright legislation	Intellectual Property Law (Law N° 17.336) From http://www.wipo.int/clea/en/text_html.jsp?lang=ES&id=797
Other relevant laws
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 As a result of legal reform, which was adapted by the Law of the Free Trade Agreement with the United States of America, the minimum of the period of protection is 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 In Chile, the work is protected by the mere fact of its creation, without requiring any registration. However, it is necessary to clarify that for intellectual works enjoy copyright protection should be fixed on a carrier. Without fixation, there is not "work" and therefore no copyright protection.
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?	NO While in Chile there is free competition legislation of general application (Decree-Act Nº 211) for certain sectors or activities, including intellectual property, sectoral legislation prevails because of its special character. In Chile there is no regulation on non-voluntary licenses or special royalties. Only establishes the obligation of collective management of rights organizations of to contract at the rates they set.
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 expressly enshrines the 'Freedom to create and disseminate the arts, and Copyright in the artistic and intellectual creations of any kind'. Regarding exercise, there is an special relationship between these rights and the other contained in the Constitution (for example ‘freedom of speach’), without a hierarchy among them, must be a weight in each case.
Does the compilation of a database of non-original material fall outside the scope of copyright?	NO The databases are included under the protection if by reason of the selection or arrangement of their contents constitute intellectual creations. This protection does not extend to data or material itself in them.
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	NO There are some contracts that do not support modifications, however the general rule in Chile is the freedom of contract, so it could be assumed that parties to a contract may provide for exceptions or limitations to copyright other than those set forth in the law. However, this issue becomes moot, because it can be argued that exceptions and limitations are mandatory, and therefore could not be restricted by contracts.

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 The Chilean law does not provide 'fair use'. The only exceptions to copyright are set explicitly in the rules of copyright.
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	NO These changes of format can be considered as an adaptation or a transformation, and like any adaptation than is not excepted, requires explicit permission from the owner.
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	NO There is only one exception. Is permitted to copy and adapt a software by the rightful owner. In the case of the copy, it must be essential for backup or archival purposes. In the case of adaptation, it must be essential for use in any given computer, and without being intended for a different use. The transfer of copies is prohibited unless it is linked with the sale of genuine software.
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	LIMITED Intellectual property law allows communication, public performance, nonprofit, works protected, just within the family (the law literally refers to "core" of the family, excluding in principle to others), educational establishments charities or similar. The reform the law, now in his last constitutional procedures, would expand this exception to include libraries, archives and museums.
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	NO
For Education	Is reproduction permitted for the purposes of research or study?	LIMITED Current law just allows the reproduction, in works of cultural, scientific or didactic of fragments, of fragments of protected works, provided they mention the source, title and author. This exception covers only literary works, excluding the reproduction of audiovisual works and -by Ordinance- with an extension of just ten lines. There are no specific exception to permit reproduction for that purposes. The reform the law, now in his last constitutional procedures, would expand this exception also to to non-literary works, for purposes of criticism, illustration, teaching and research.
	Does any such research and study provision cover distance and online education?	NO
	May translations of works be made for educational purposes?	NO Currently the translations for any purposes must be considered as an adaptation or a transformation, and like any adaptation than is not excepted, requires explicit permission from the owner. The reform the law, now in his last constitutional procedures, could allow the reproduction and translation of small fragments or isolated plastic, photographic or figurative works, excluding textbooks and university textbooks, when such acts are made only for the illustration of educational activities, as justified and non-profit.
	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 This is an area not regulated by Chilean law. Anyway, it is permitted because hyperlinks are not subject to copyright protection.
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	NO
	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 ISPs have no legal protection for acts of third parties. As a matter not regulated by the Intellectual Property Law, general liability rules apply, according to which does not apply vicarious liability except in specific cases. A modification of the intellectual property law, currently in its final stages to become law, details the conditions to be met to free ISPs from liability for users who commit unlawful. Among other things, it aims to provide prompt response to complaints about breaches, comply with court decisions, in addition to not deliberately interfere in the exchange of information by users.
	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, for to restrict of this fundamental right, is necessary 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. This, which is implicit in the current intellectual property regulation, will be devoted explicitly in a provision in the amendment to the copyright law.
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	NO Any of those actions would be considered as an adaptation or transformation of the work, according to the intellectual property law, and any adaptation or 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 in detail. Based on today’s regulation, it is allowed to make an adaptation of software, without autorization of copyrigt owner, when this adaptation be necessary for its use in a determinate computer, and not destinated to a differet use. These adaptations must not been trasferred. A modification to the intellectual property law, now in the last steps to become a law, will allow reverse engineering activities with the aim of achieving interoperability between computer programs or for research and development, under some conditions.
	Is the incidental inclusion of a work in other material permitted?	NO The only incidental inclusion of works are permitted to be made under the exceptional right to make quotes, which must be fragments of a literary type, and in works of cultural, scientific or educational, limited to ten lines. A modification of the intellectual property law, currently in the final stages to become law, includes as an exception the “incidental and exceptional” use of a copyrighted work for the purpose of criticism, comment, caricature, teaching, research or academic interest, provided that such use does not constitute a covert operation. This exception excludes the use of documentary films.
	Is there are copyright exception for parody or satire?	NO A modification of the intellectual property law, currently in the final stages to become law, includes as an exception states that is legitimate satire or parody than is an artistic contribution that unlike the work referred, to in its interpretation or characterization of its interpreter.
	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.
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?	LIMITED 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. The reform the law, now in his last constitutional procedures, would expand this exception also for purposes of criticism, teaching and research.
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	NO A modification to the intellectual property law than it´s in the last steps to become law, would to establish this exception. It allows to make a copy of a work when those not be available for sale to the public in national or international market in the last three years, and will be necessary for: to preserve or replace in case of loss; replace a copy of another library or archive has been lost; or to add a copy to its permanent collection.
	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 in the last steps to become law. 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.
	Are libraries allowed to make preservation or archive copies of materials in their collections?	NO A modification to the intellectual property law than it´s in the last steps to become law, would to establish this exception. The work must not be available for sale to the public in national or international market in the last three years, and the library can make until two copies of each work.
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	NO
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 in the last steps to become law. Under this exception wuold be possible to copy, adapt, distribute or communicate to the public works for benefit to visual, hearing or otherwise disabilities, through appropriate mechanisms to overcome the disability, and where such non-commercial use.
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 A modification of the intellectual property law, currently in the final stages to become law, includes as an exception states that is permitted to reproduce or comuncate to the public a word for judicial, administrative or legislative acts.
	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?	In the current law, depending on the infringement, the penalty may vary between a US $3.400 fine and 540 days in prison (or 3 years in case of recidivism recurrence), and a US $6.800 fine. In the reform currently in the final stages to become law, will be verified a significant increase in the amount of sanctions, In the new scale of penalty, it is directly associated with the injury damage, wich must be determined based on the retail value of protected objects. The maximun penalty is US $68.000 and and 540 days in prison, and in case of recidivism, the fine shall not be inferred to twice the previous one, reaching a maximum of US $136.000.
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.
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	NO In the Law currently in force, not in general terms. In the reform, than is in the final stages to become law, manifests a clear intention by the legislature in order to attribute to personal crimes a lesser sentence (maximum fine of USD $ 34,000) than those associated with commercial activities (US $68.000, and until US $136.000 in case of recidivism).
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 Actually this is a subject 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 a subject 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?	YES The collecting societies are regulated by theintellectual Property Act, which instructs the Ministry of Education oversee its constitution and authorize the commencement of its activities. This authorization may be refused if the entity violates its legal obligations seriously. Overall management entities can operate with autonomy from the authority, for example, setting the amount of the fees charged. The reform of the intellectual property law is finishing his constitutional procedure modifies the process for setting rates, establishing mediation and arbitration process to which the management entities must undergo in the event of conflict.
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 This is an unresolved issue towards the current legislation so that although there is no obligation on ISPs to inform the user complaints of infringements of copyright, nor an expedited communication exclude the liability of the ISP level. The responsibility would be determined by courts on a case. The reform of the intellectual property law is finishing his constitutional procedure establishes the ISP's obligation to inform the user reported the alleged offenses, within 5 days, if the complaint is: written by the owner or his representative, who must have an address in Chile, identify his rights and the mode of the infringement, the infringing material, and data to identify the offender.
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	YES The damages and compensation in case of copyright is governed by the general system of extra-contractual liability, that is the fault. The reform of the intellectual property law is finishing his constitutional procedure incorporates the possibility of replacing the payment of compensation for damage compensation in a lump sum, not exceeding maximum US $136.000.
Is there provision to penalise the wrongful allegation of copyright infringement?	NO

Conclusions

As mentioned in many items of this questionnaire, there are many subjects that have still 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 copyrightⁱ 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.

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

May copyright works be freely offered for commercial rental?	YES
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 It is clear that only can be waivable economic rights, but not moral rights. The Copyright Act provides no formalities for the waiver of rights. The Act provides somewhat contradictory rules on the waiver: first the states as a way to pass the public domain works on the other states that economic rights are inalienable. The general rules aim to the renunciation of these rights, since they look to the individual interests of the owner. In the reform currently ended his constitutional procedures to become law, especially empowering state legal persons to free for public domain their works through a declaration by the owner.
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
Are there specifications or incentives in national law/policy for the use of open document formats?	NO