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Mexico

Fri, 05/02/2010 - 10:07 — cejmexico

Legal background

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
The period is actually longer than that mandated by the Berne Convention. According to the LFDA, the period of protection is the life of the author and 100 years thereafter.		 LFDA, Article 29
Must a work be fixed in some material form before copyright attaches? YES
The LFDA only requires that the work be fixed in some material form. Such material form may be of any kind.		 LFDA, Article 5
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
There is no provision that contemplates the granting of compulsory licensing in the copyright field. The Federal Competition Law does not include this aspect.		 FCL, Article 5
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? NO
There is not any legal connection between these two concepts.
Does the compilation of a database of non-original material fall outside the scope of copyright? NO
The LFDA provides for the protection of non-original databases for a period of 5 years.		 LFDA, Article 108
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? YES
The Law prevails over contracts, giving the parties the liberty only for specifically contemplated cases.		 LFDA, Articles 21, 22, 23, 30, 31, 32, 33

Freedoms to access and use

By Home UsersIs there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria? NO
However, the LFDA's theory of “fair use” allows the use of brief fragments of works.		 LFDA, Articles 148, 149, 150, 151
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? LIMITED
The protection to Works is total, allowing the shifting to other means only to the copyright holder.		 LFDA, Article 231, Section III
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? LIMITED
The authorization is only provided for software, literary and artistic Works, being limited to only one “backup” copy.		 LFDA, Articles 40, 105 Section II, 148 Section IV
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? YES
The Law does not contain any provision for these cases, even when, in practice, they are tolerated.		 LFDA, Article 231, Section I
Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy? YES
The Law provides the possibility of using a work by the public, by paying compensation to the holder of the right.		 LFDA, Article 40
For EducationIs reproduction permitted for the purposes of research or study? YES
In this scenario, only the reproduction of music is considered.		 LFDA, Article 148, Section III
Does any such research and study provision cover distance and online education? NO
The Law does not contemplate these cases.
May translations of works be made for educational purposes? YES
The Law does not include any provisions for these cases. In Mexican law, to citizens in general, everything not prohibited is allowed.
May works be reproduced and published by educational institutions in connection with systematic instructional activities? YES
The Law does not include any provisions for these cases. In Mexican law, to citizens in general, everything not prohibited is allowed.
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? YES
The Law does not include any provisions for these cases, however, such an activity does not qualify as an infringement if a lack of profit is demonstrated.
Are temporary or transient copies, incidental to a lawful use, excepted from copyright? NO
The Law does not include any provisions for these cases, due to which they would be considered as infringement.
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
They are protected only as long as they may demonstrate not obtaining any profits for the reproduction of works.
Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? YES
They may provide contents directly, but this does not exempt them from risks.
Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? NO
They are not protected in case of a judicial order.
By content creatorsCan copyright works be non-commercially remixed or mashed up into new works? YES
It may be done, but without commercial purposes.		 LFDA, Article 231
May computer software be reverse engineered for the purpose of creating interoperable software? LIMITED
It’s possible, as long as the software is not part of a patented product.		 LFDA, Article 14, Section II
Is the incidental inclusion of a work in other material permitted? LIMITED
Only as long as it’s a brief fragment.		 LFDA, Article 231, Section I
Is there are copyright exception for parody or satire? NO
The Law does not include any provisions for these cases.
Do creators who license their work retain the moral right of attribution? YES
Yes, in general, the author retains the entirety of the moral rights.		 LFDA, Articles 19, 21, 21
By the pressIs there a copyright exception for the news of the day? LIMITED
There is, the use of news of the day is allowed, unless there is an express prohibition by the owner.		 LFDA, Article 148, Section II and 141, Section IX
May copyright material be reproduced for the purposes of review and criticism? LIMITED
The reproduction of parts of the work is allowed for this purpose.		 LFDA, Article 148, Section III
May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? YES
Only for information purposes. There is no legal provision in this regard.		 LFDA Article 14, Section IX and 148 Section II
May quotations be used for any purpose? YES
Whenever fragments of a work are used, the source must be mentioned.		 LFDA, Article 148
By LibrariesMay libraries copy works that cannot reasonably be obtained commercially? YES
Yes, but neighboring rights must be paid.		 LFDA, Article 231, Section I
May libraries copy works for users for the purpose of research or study? YES
The case is not contemplated. In Mexican law, to citizens in general, everything not prohibited is allowed.		 LFDA, Article 231, Section I
Are libraries allowed to make preservation or archive copies of materials in their collections? LIMITED
Yes, but only one “backup” copy.		 LFDA, Article 148, Section IV
In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)? NO
As it is not contemplated, it is not allowed.		 Penal Code, Article 211bis
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? NO
The case is not contemplated in mexican law.
In public affairsAre laws excluded from copyright? YES
Laws may be freely reproduced.		 LFDA, Article 14, Section VIII
Are other governmental works excluded from copyright? YES
Rulings, jurisprudence and regulations receive the same treatment as above.		 LFDA, Article 14, Section VIII
Is there a copyright exception for use of material in judicial proceedings? NO
Not expressly. It would be protected just as any other work.		 Transparency Law, Article 11
Are the results of publicly funded research required to be published under an open access license? NO
There is no provision for this, however, if it is governmental research, access to the same is allowed based on the Federal Transparency and Access to Information Law.		 Transparency Law, Article 11

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? NO
The copyright holder may prohibit it.		 LFDA, Article 231, Section I
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? NO
The case is not contemplated.
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
The free reproduction of an orphaned work is expressly allowed, until the point that a person who proves is the author of the work arises.		 LFDA, Article 153
Is parallel importation permitted? YES
According to the Law of Industrial Property, yes, parallel importing is permitted, as well as according to the LFDA.		 LFDA, Article 27, Section IV
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
There is no official policy in this regard.
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
There is no official policy in this regard.
Are there specifications or incentives in national law/policy for the use of open document formats? NO
There is no official policy in this regard.

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? 10 years’ imprisonment. FPC, Article 424
What is the maximum penalty for copyright infringement for a corporation? Fine of up to the equivalent to 100,000 U.S. Dollars. LFDA, Article 232, Section I
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge? YES
There is this criterion as a factor for the adjustment of penalties.		 IPL, Article 214
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
It is not allowed. The transgression of electronic protection measures of information is considered as a criminal offense.
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright? NO
It is not allowed. The transgression of electronic protection measures of information is considered as a criminal offense.
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? NO
There is no provision in this regard. Consumers must only be warned about dangerous uses.		 FCPL, Article 40
Are the operations of copyright collectives subject to public oversight? NO
There is no legal provision that contemplates this.
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? YES
There is no legal provision that contemplates this.
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? NO
No. The criminal sanction may also be applied to small-scale cases.		 FPC, Article 424
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award? NO
The law provides for a compensation of 40% of the retail sales price of the infringing products.		 LFDA, Article 216bis
Is there provision to penalise the wrongful allegation of copyright infringement? LIMITED
Only in the event causes damages to the image of a person or company.		 FCC, Article 1916

Conclusions

Mexico has the dubious distinction of a world record copyrighti term, having extended it in 2003 from from the life of the author plus seventy-five years to the life of the author plus one hundred years.  On the other hand, Mexico's law lacks some basic limitations and exceptions for consumers, such as those for library and educational use.

Mexico has not assumed express policies on many of the matters concerning access to knowledge. In particular there is not a defined legal position regarding the relationship between copyright and consumer protection and competition regulations.  Copyright law is seen as a measure for the protection of creators, rather than requiring a balance between their interests and those of consumers.

Since Mexico was also first developing country participant in the negotiations for an Anti-Counterfeiting Trade Agreement (ACTAi), its government's priorities in relation to access to knowledge are troubling, and it is hoped that with the increased public awareness of copyright issues in the wake of recent ACTA negotiations in Mexico, its priorities will be reassessed.

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