The different terms of Copyright in Mexico

April 17, 2014 at 11:32 AM 2 comments

On July 23, 2003, the Federal Congress amended the Mexican Federal Copyright Law. Among other changes, the Congress extended the term of the economic rights on works from the life of the author plus 75 years to the life of the author plus 100 years, counted from the date of death of the author.

Since 1997, the Mexican statute makes a distinction between personal rights and economic rights. Personal rights include the right to decide if a work should be disclosed or not, the right to modify the work, the right to oppose the mutilation of the work, and the right to be acknowledged as author, among other rights. As a rule, personal rights have no monetary value and may not be assigned by contract.

Economic rights include the right to copy the work, distribute copies, communicate the work, authorize the public use of derivative works (such as translations and adaptations), among others, and may be assigned and licensed.

As a consequence of the 2003 amendment to the Federal Copyright Law, many lawyers and associations of authors claim that the economic rights on works of authors that died 50, 75 or 90 years ago are still in force, hence the holders of such economic rights are entitled to claim royalties for the use, public communication or reproduction of the works.

However, a thorough review of the different provisions and past legislations regarding copyright may lead to a different conclusion.

The Federal Copyright Law of 1947[1] provided that the term of copyright was the life of the author plus 20 years. A new copyright statute enacted in 1956 extended the life of copyright to the life of the author plus 25 years.

The Federal Copyright Law of 1956[2] expressly stated that the copyright term of works of authors that died before the enactment of the new law would be automatically extended to the term provided in the 1956 statute. In other words, the Federal Copyright Law of 1956 provided the retroactive application of the new extended term of copyright.

The 1956 law was amended in 1963; the 1963 amendments were so deep and extensive that it is usual to speak about the Federal Copyright Law of 1963[3], as if it were a new statute. The Federal Copyright Law of 1963 extended the term of copyright to the life of the author plus 30 years after his death. However, unlike the 1956 statute, the transitory articles of the 1963 law did not provide that the new term could be retroactively applied.

An amendment in 1982[4] to the Federal Copyright Law of 1963 stipulated a new extension for the term of the copyright: the life of the author plus 50 years. Again, the transitory articles of the amendment did not provide that the extended term would be retroactive.

Constitutional article 14 prohibits the retroactive enforcement of a law or regulation, only if it harms an acquired right. However, in my opinion, as a rule, in order to retroactively enforce a new law or amendment, it is necessary for the new or amendment law to expressly provide such retroactive effect[5]. The only exception would be new laws or provisions that stipulate criminal or administrative penalties, if the new stipulation or law states a benefit or less severe penalty; in this case the new stipulation or law would be enforced automatically, without explicitly stating the retroactive enforcement of the new law of provision[6].

Without a provision allowing the retroactive enforcement of the extended terms of copyright stipulated in the Federal Copyright Law of 1963 and its amendment of 1982, it is quite arguable to state that the original copyright term stipulated in the Copyright Law of 1956, was extended by the Federal Copyright Law of 1963 or its amendment of 1982. If the terms stated in the Law of 1963 and its amendment of 1982 cannot be enforced in connection with authors that died when the Law of 1956 was still in force, the copyright on the works of an author that passed away, i.e. on October 31, 1963, were extinguished by October 31, 1988, (25 years after the date of death).

In the same way, the term of copyright of authors that died when the Copyright Law of 1963 was in force, but before the amendment of 1982, did not get the benefit of the new extended term. The exclusivity rights on the works of an author deceased in 1966 would be extinguished by 1996.

The Federal Copyright Law currently in force was enacted on December 24, 1996[7], and became enforceable on March 24, 1997. As I stated at the beginning of this post, the 1997 Federal Copyright Law was the first statute to provide an explicit distinction between personal and economic rights in the field of copyright[8]. Originally, the Federal Copyright Law of 1996 stated a term of 75 years, counted from the date of death of the author, for economic rights. As in 1963 and 1982, the Federal Copyright Law of 1996 did not stipulate that the new extended term of the economic rights on a work could be retroactively enforced; the 2003 amendment to the Federal Copyright Law (enacted on July 23, 2003, and enforceable on July 24, 2003)[9] that extended the term of economic rights to a 100 years, counted from the death of the author, did not state retroactivity either.

Therefore, in opinion, the extended terms for economic rights provided in 1996 and 2003 may not be extended to works by authors that died before the new terms became enforceable.

About a year ago, AIPPI submitted Question 235 or Q235 about the term of copyright protection in Mexico. Unfortunately, the answer to the question from the Mexican chapter did not analyze the issues regarding the retroactive enforcement of the extended terms of copyright protection in Mexico.

In conclusion, there are four possible scenarios regarding the term of copyright economic rights in Mexico, depending on the statute or amended statute that was enforceable by the time the author of the work died:

A. In the case of the works of authors that died by or before January 11, 1982, the term of the copyright economic rights expired on January 11, 2012. These works are in public domain now.

B. In the case of the works authors that died between January 12, 1982 and March 23, 1997, the term of the copyright economic rights will expire 50 years after the date of death.

C. In the case of the works of authors that died between March 24, 1997 and July 23, 2003, the term of the copyright economic rights will expire 75 years after the date of death.

D. In the case of the works of authors that passed away on or after July 24, 2003, the economic rights will expire 100 years after the date of death.

———————–

[1] The Federal Copyright Law of 1947 (in Spanish) is available here.

[2] The Federal Copyright Law of 1956 (in Spanish) is available here.

[3] The Federal Copyright Law of 1963 (in Spanish) is available here.

[4] The 1982 amendment to the Federal Copyright Law of 1963 (in Spanish) is available here.

[5] There is an old non-binding precedent (in Spanish) from the Supreme Court that supports this opinion: “Retroactividad de la ley (Teoría de los derechos adquiridos) (Legislaciones del Distrito Federal y de Yucatán)”, Semanario Judicial de la Federación, Quinta Época, Tomo LXXVIII, p. 2435.

[6] There is a recent binding precedent (in Spanish) from the Supreme Court: “Principio de retroactividad de la norma posterior más favorable. Procede aplicarlo en beneficio del gobernado cuando la nueva disposición deja de considerar antijurídica la conducta sancionada con multa fiscal”, Semanario Judicial de la Federación y su Gaceta, Décima Época, Libro XIX, Tomo 2, abril de 2013, p. 1321.

[7] The original text of the Federal Copyright Law of 1996 (in Spanish) is available here.

[8] Before 1996, the distinction between economic and personal rights was known in Mexico, but limited to the jurisprudence and judicial decisions, as evidenced in this non-binding precedent (in Spanish) from 1987: “Derechos de autor. Distinción entre el derecho de divulgación y el patrimonial de explotación de la obra”, Semanario Judicial de la Federación, Séptima Época, Volumen 217-228, Sexta Parte, p. 214.

[9] The text of the 2003 amendment to the Federal Copyright Law of 1996 (in Spanish) is available here.

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2 Comments Add your own

  • 1. NICK BIRD  |  November 15, 2018 at 4:17 AM

    Does this mean that both image rights AND artistic rights in the work of FRIDA KAHLO have expired?

    Reply
    • 2. Arturo D. Reyes  |  November 18, 2018 at 1:24 PM

      Yes, in Mexico. Each country has its own rules regarding the term of copyright and derecho de autor; a work in public domain in Mexico may be still protected by copyright in other countries. Further, all Frida Kahlo artistic works was declared artistic monument on July 1984 (see http://www.dof.gob.mx/index.php?year=1984&month=07&day=18). This means that any use or reproduction in Mexico of Frida Kahlo’s works (regardless who owns the original) needs authorization from the Mexican government and, in some cases, payment of a fee. This payment is not copyright-related.

      Reply

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