Chile

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period 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 period of protection is 70 years, and not 50, as was stated in the Berne Convention.
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? 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.
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 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.
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? 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.
Are rights holders prohibited from excluding user rights under copyright law? 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.
Is computer software excluded from the scope of patentable subject matter? Yes

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? 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? In part
Intellectual property law allows communication or public performance of works protected, non profit, just within the family (the law literally refers to "core" of the family, excluding in principle to others), educational establishments, libraies, archives and museums.
For EducationMay students copy works for private research or study? In part
The Chilean Law law allows the reproduction of short excerpts of copyrighted works, provided they mention the source, title and author, as quote or with aim of criticism, ilustration, teaching and research.
Does any such research and study provision cover distance and online education? In part
The chilean Law provides an exception, for Libraries and archives, no for-profit, without any permission or payment, to make electronic reproduction of the works from its collection, to be viewed simultaneously free in network terminals in the same institution, under certain conditions.
May translations of works be made for educational purposes? Yes
It's allowed 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. Also, Libraries and Archives no for-profit are authorized to perform translations of full works, on request of their users, for purposes of research or study. Finally, is also allowed the translation of works in foreign languages for personal use.
May educators copy works for use in the classroom? Yes
It's allowed the reproduction of short excerpts of copyrighted works, provided they mention the source, title and author, with aim of teaching. This also applies to individual works or fragments of art works, photographs or figurative works (excluding textbooks and university textbooks). Also, in Chile is expressly permitted incidental and exceptional use of a work for purposes of teaching, research or academic interest.
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? Yes
Temporary reproduction is allowed. This must be transient or incidental, an essential part of a technological process and be aimed at a lawful transmission in a network or a lawful use without independent economic significance. Also, in Chile expressly permitted incidental and exceptional use of a work for purposes of citicism, comment, teaching, research or academic interest.
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? Yes
The Copyright law exposes in detail the conditions for ISPs to be free from liability for users who commit unlawful. Among other things, the ISP must to provide prompt response to complaints about copyright breaches, comply with court decisions, in addition to not deliberately interfere in the exchange of information by users of their networks.
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? Yes
The Copyright Law expressly provides that ISPs have no obligation to monitor the data they transmit, store or reference or obligation to search for facts or circumstances indicating illegal activity. This is without prejudice to the measures available by court order. 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.
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? In part
In principle, these creations are derived works, which to be protected would require the permission of the copyright's owner. However, some of these artistic expressions could afford if they are regarded as exceptional and incidental use, than does not constitute covert exploitation of the work.
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? Yes
Reverse engineering activities are allowed, if they are been made with the aim of achieving interoperability between computer programs, or for research and development. Information obtained through it should not be used to produce or market a similar software or to infringe copyright.
Is the incidental inclusion of a work in other material permitted? Yes
The incidental and exceptional use of a copyrighted work is allowed 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? Yes
Is permitted satire or parody, if it represents an artistic contribution that differs from the work to which it relates.
By the pressIs there a copyright exception for the news of the day? No
May copyright material be reproduced for the purposes of review and criticism? Yes
Are allowed the reproduction of short excerpts (quotes), and the incidental and exceptional use exception, both for purposes of criticism or comment.
May quotations be used for any purpose? Yes
Quotations may be used for purposes of criticism, illustration, teaching and research.
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? Yes
It's allowed for Libraries and archives, no for-profit, 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 librarians copy works for users for the purpose of research or study? Yes
Libraries and archives, no for-profit, can to 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? Yes
It's allowed for Libraries and archives, no for-profit. 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.
Can lending libraries operate without incurring public lending rights fees to copyright owners?
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? Yes
There is an exception than make 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 affairsAre laws excluded from copyright? No
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? In part
Is permitted, without requiring permission from the copyright owner or any payments, the reproduction or public comunication of protected works, for the conduct of judicial proceedings, administrative and legislative.
Are the results of publicly funded research required to be published under an open access licence? No

Freedoms to share and transfer

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
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.
Can public domain works be used without the need for any payment or registration of the use? Yes
Does the law make special provision for the legal use of orphaned works? 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 of copyright works 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 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? No
Are there national programmes or policies that specify or promote the use of open document formats? No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? In the current law (recently modified), depending on the infringement, 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. The penalty, it is directly associated with the injury damage, must be determined based on the retail value of protected objects.
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 innocent infringement of IP treated differently by the law? In part
The current Law (recently modified) 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 legal purposes? Yes
Actually this is a subject not regulated by the law, therefore it is permitted.
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? Yes
This is a subject not regulated by the law, therefore it is permitted. The only mention of this in the current Copyright Law states that the ISP, to enjoy the limitations of liability set out in their favor, should not interfere with technological protection measures and rights management of protected works, widely recognized and used lawfully.
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? In part
An interpretation, based on the consumer protection rules, could hold than this information (about TPMs) 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. Finally, the Intellectual Property Law concerning technological protection measures with regard to regulating the ISP, saying that to limit their liability, the ISP should not interfere with technological protection measures "widely recognized and used legally", assuming these conditions to demand respect for the ISP.
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? No
The Law 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 limited to the loss sustained, rather than 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. However, the Copyright law includes 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
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

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

However, the recent amendment than update the Copyright Law has been a dramatic change in many ways.

First, the Chilean regulation now has a more adapted to the reality of scenarios of exception to copyright. Exceptions for disabled persons, libraries and nonprofit files, or use incidental and exceptional, form a completely new framework, more beneficial than former for access to knowledge and information. As mentioned in diferent  items of this questionnaire, there are many subjects that have still not been regulated by Chilean Intellectual Property Law up to date.  However, the recent amendment than update the Copyriht Law has been a dramatic change in many ways. First, the Chilean regulation now has a more adapted to the reality of scenarios of exception to copyright. Exceptions for disabled persons, libraries and nonprofit files, or use incidental and exceptional, form a completely new framework, more beneficial than former for access to knowledge and information.

Second, a new system of penalties, significantly increases the penalties, but makes more rational assessment of fines and penalties, such as linking the damage caused. Third, the regulation of the activity of the ISP, assure that, in safeguarding their interests and to avoid incurring liability, not be restricted the freedoms of Internet users.

Emerging issues to be resolved to the Chilean legislation are solutions such as compulsory licensing, better protection of the public domain, and improved mechanisms for consumer protection of cultural goods.

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