It has been a complex process to accomplish this reform. The reason is basically that criminal penalties have been the basic means for enforcing copyrights. The 1956 law devotes a whole chapter to criminal actions, providing a list of acts that are considered crimes. However, the standard for satisfying the criminal rule has been high. In addition, the copyright law allows an injured owner to recover damages after a court has finally determined that an infringer is liable for criminal penalties. At a minimum the 1956 Law sets that the court must impose damages equal to 40% of the total value of the infringing products.
As to preliminary measures the 1956 Law and the Criminal Procedures Code authorise the Federal Attorney General's Office to impose some provisional measures during the office's preliminary inquiry of the case. These provisions allow the General Attorney Office to seize and destroy infringing goods, under certain circumstances which consist of the need to request search and warrant orders to Federal Courts.
The civil system was considered to be less prepared for being the recipient of the changes. Enforcing copyright through civil law would have required the reform not only of copyright law, but also of other statutes such as the Civil Procedure Code. Under the 1956 Law civil actions cannot be used to stop unauthorised reproduction of the work. Moreover, the standard for proving damages in civil actions is quite difficult to satisfy. Alternative remedies, such as punitive or statutory damages, are unavailable. Mexican law provides only provisional remedies in civil cases; they can sometimes be broad but are definitively difficult to enforce.
The Mexican Government now proposed and Congress approved to base copyright enforcement on administrative actions. The question was which authority to use for that end. The Copyright Office has traditionally represented a registration authority without the powers to prevent infringement. On the other hand, the Mexican Industrial Property Institute (IMPI) has proved to be effective in the application of property rights. Due to the foregoing it was granted with the authority to enforce the patrimonial aspect of Copyright Law. The new Law has named the related provisions "Infractions In Commerce". The Copyright Office itself, however, was empowered with the application of the moral right portion of the Law.
"Infractions in commerce" when undertaken with direct or indirect gainful intent, will constitute commercial infractions. Only most relevant provisions are quoted hereunder:
I. Publicly use or communicate a work protected by any means and in any form without the prior authorization of the author, or his/her lawful heirs, or of the economic rightholder;
III. Produce, manufacture, stock, distribute, transport or commercialise illegal copies of works protected by this Law;
IV. Offer for sale, stock, transport or put in circulation works protected by this Law that have been deformed, modified or mutilated without authorization of the rightholder;
V. Import, sell, rent or undertake any act that permits possession of equipment or system the goal of which is to deactivate electronic protections found in a computer program;
VII. Use, reproduce or exploit a protected RESERVA of Rights (certain protection afforded to characters, titles of publications, among others), or a computer program without the consent of the rightholder.
X. Other infractions of the provisions of this Law that involve conduct on a commercial or industrial scale related to works protected by this Law.
The Copyright Law states that these commercial infractions will be sanctioned by IMPI by 5,000 to 10,000 days of minimum daily salary (approx. $15,000.00 to $30,000.00 US Cy) in all relevant cases, except those in X. above, which shall be 500 to 1000 days.
For those who persist in a violation, IMPI can apply an additional fine up to 500 days of minimum daily salary per day (up to $1500 per day).
Exploitation of works on a commercial scale can increase the fines by 50%.
The procedures and provisional injunctions set forth in the Industrial Property Law shall be applicable to the commercial copyright infractions. IMPI can also suspend free circulation of imported goods at the border.
Finally, copyright crimes have been reduced and were moved from the former Copyright Law to the Penal Code. The basic provision was left as follows:
"There will be prison from 6 months to 6 years and from 300 to 3000 days of fine (about $9000 US Cy max) for whoever produces, makes, imports, sells, stocks, transports, distributes or rents works protected by the Copyright law with willful intent, on a commercial scale and without authorization of the rightholder".
This article is intended to provide a general guide to the subject matter and should NOT be treated as legal advice. Specific legal advice should be sought by you about your particular case and special circumstances.
For further information/enquiries, please contact:
Cesar Ramos, Jr Olivares & CIA Moras 822 Col. Acacias 03230 Mexico, D.F. Mexico Tel No: 5255240620 Fax No: 5255242959 E-mail: olivlaw@mail.internet.com.mx
You may also wish to read through related material on Intellectual Property matters in Mexico provided by Olivares & CIA. You can view the entire archive via the Internet on Business Monitor Online (http://www.businessmonitor.co.uk), or via your online provider by entering "Olivares & CIA" and "Business Monitor" as a free text search.
