Copyright 2021

Last Updated February 17, 2021

Mexico

Law and Practice

Authors



Basham, Ringe y Correa S.C. is a full-service law firm with a strong presence in Latin America, and is the Lex Mundi representative for Mexico. Clients include prominent international corporations, many of which are on the Fortune 500 List, medium-sized companies, financial institutions and individuals. The firm offers in-depth knowledge of the domestic and international markets, including economic trends and current affairs, and many of its lawyers and other professionals have completed graduate studies at foreign universities and worked at companies and law firms abroad.

Mexico's copyright statute and regulation is the Federal Copyright Act (1996) (FCA) and the Regulations to the Federal Copyright Act (1998). The following provisions also govern copyright:

  • the Federal Civil Code;
  • the Commercial Code;

The below and most other binding criteria can be found online:

  • 1a. XIII/2020 (10a): hotels who provide their guests with paid television contents in their rooms require a licence from the copyright holders (persuasive);
  • 1a. XII/2020 (10a): any act by means of which a copyrighted work is made available to a plurality of people will normally entitle the author to the payment of royalties (persuasive);
  • I.1o.A.186 A (10a): creators of a work under a work for hire basis are still authors to the work and have the right to be recognised as such (persuasive);
  • 2a. CIX/2017 (10a): the right to free speech implies that blanket restrictions on access to a website on the basis of copyright are generally unconstitutional (persuasive);
  • 2a./J. 83/2016 (10a): the limitations on copyright established for allowing people with disabilities access to works is not unconstitutional (binding); and
  • P./J. 103/2007: authors cannot waive their right to receive royalties from the public communication of their works, yet they can assign the rights to perceive such royalties (binding).

Mexico signed the Paris Act on 24 July 1971. The Berne Convention was published in the Federal Official Gazette on 24 January 1975. Mexico ratified the two WIPO Copyright treaties in 1996. It is a member of the WTO and has followed the TRIPS Agreement since 1 January 1994.

Mexico is a party to the following multilateral agreements.

  • The Convention on Literary and Artistic Property, signed at the Fourth International American Conference in Buenos Aires, Argentina. Published in the Federal Official Gazette on 23 April 1964, sustained between the United States of America, Argentina, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, El Salvador, Uruguay and Venezuela.
  • The Inter-American Convention on Copyright in Literary, Scientific and Artistic Works. Published in the Federal Official Gazette on 24 October 1947. Signed at the Inter-American Conference of Experts for the Protection of Copyright, Pan American Union, held in Washington, D. C., by Nicaragua, Ecuador, Dominican Republic, Guatemala, Mexico, Venezuela, Peru, Haiti, Panama, Colombia, Chile, Brazil, Costa Rica, Honduras, Argentine Republic, United States of America, Uruguay, Paraguay, El Salvador, Cuba and Bolivia.
  • The Berne Convention for the Protection of Literary and Artistic Works Published in the Official Gazette of the Federation, on 24 January 1975.
  • The Universal Copyright Convention. Published in the Official Gazette of the Federation on 6 June 1957.
  • The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (also known as the Rome Convention).
  • The Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of their Phonograms.
  • The Convention on the Distribution of Programme-carrying Signals Transmitted by Satellite. Published in the Federal Official Gazette on 27 May 1976. Signed in Brussels, Belgium on 21 May 1974 and approved by the Mexican Senate on 19 November 1975.
  • The Marrakech Treaty to facilitate Access to Published Work for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled.
  • The Beijing Treaty (signed by the President of Mexico and not yet ratified by the Mexican Senate).

Mexico is a party to the following bilateral and regional agreements:

  • the Agreement between the United Mexican States and Spain to guarantee and ensure the ownership of scientific, literary and artistic works in both countries (1924);
  • the Agreement between the United Mexican States and the French Republic, for the protection of the copyright of the musical works of their nationals (1951);
  • the Agreement between the United Mexican States and the Kingdom of Denmark, for the mutual protection of the works of their authors, composers and artists (1955);
  • the Agreement between the United Mexican States and the Federal Republic of Germany, for the protection of the copyright of the musical works of its nationals (1956);
  • the North American Free Trade Agreement (NAFTA) (1994); and
  • the United States – Mexico - Canada Agreement (USMCA) (2020).

Foreign authors or holders of rights and their successors in title shall enjoy the same rights as Mexican nationals under the terms of the FCA and international treaties on copyright and related rights signed and approved by Mexico.

The protection provided by the FCA is granted to works from the moment they are fixed on a material medium, regardless of their merit, intended purpose or form of expression.

The recognition of copyright and neighbouring rights does not require registration nor documentation of any kind, and is not subject to compliance with any formality.

The FCA provides that copyright protection will be granted to works from the moment they are fixed on a material support. No special notices are needed for protection. Protected works under the Federal Copyright Act must display the notice “Reserved Rights” (or its abbreviation “D.R.”), followed by the © symbol, the full name and address of the copyright holder and the first year of publication. Omission of these requirements will not imply the loss of copyright but it constitutes a copyright infringement and could result in economic penalties against the licensee or responsible editor.

The Public Registry of Copyright is available to the public.

The categories of copyrightable works in Mexico are:

  • literary;
  • musical, with or without lyrics;
  • dramatic;
  • dance;
  • pictorial or drawing;
  • sculpture;
  • cartoons and comic books;
  • architectural;
  • cinematographic and other audio-visual works;
  • radio and TV programmes;
  • computer programs;
  • photographic works;
  • applied art works, including graphic or textile design; and 
  • compilations or integrated by collections of works, if they constitute an intellectual creation by reason of their selection or the arrangement of their contents or subject matter.

Other works which, by analogy, may be considered literary or artistic will be included in the branch which is most appropriate given their nature.

Software is protected by copyright in the same way literary works are protected. 

Databases may benefit from copyright protection as compilations if they constitute an original intellectual creation by reason of their selection or the arrangement of their contents or subject matter. 

The FCA provides that databases that are not original will be protected in their exclusive use by who created  them, during a term of five years.

Access to private information related to the persons contained in the databases, as well as the publication, reproduction, dissemination, public communication and transmission of said information, will require the prior authorisation of the persons in question.

The FCA does not provide express copyright protection to industrial designs.

However, the owner of a design may obtain both industrial design and copyright protection (as a pictorial or drawing work), if the design complies with the legal requirements for protection.

The FCA regulates a figure that grants legal protection, called the Reservation of Rights to the Exclusive Use. These reservations can grant a right of exclusive use over the following genres.

  • Titles of periodic publications, such as magazines. This right lasts one year from its grant date and may be renewed for equal periods of time.
  • The title of a periodic broadcast, such as a radio programmes. This right lasts one year from its grant date and may be renewed for equal periods of time.
  • The name, physical and psychological characteristics of a character. This right is granted for five years from its grant date and is renewable for equal periods of time.
  • The name of artistic groups. This right will last for five years from its grant date and may be renewed for equal periods of time.
  • The names and characteristics of advertising campaigns offers. This right will last for five non-renewable years from its grant date.
  • Radio and TV programmes may benefit from copyright protection in their original elements. According to the FCA, the informative content of news is not covered by copyright, but the manner of expression is.
  • Sport events may also benefit from copyright protection regarding its broadcasting. The holders of broadcasting rights have the right to authorise or prohibit the retransmission, deferred transmissions, simultaneous or deferred distribution, fixations, reproductions of fixations and public communication by any means and with direct profit purposes.
  • Advertising campaigns may be protected as Reservations of Rights if they involve a novel and unprotected mechanism tending to promote and offer a good or a service, with the additional incentive of providing the general public with the possibility of obtaining another good or service, in more favourable conditions than those normally found in  commerce. Commercial advertisements are excluded from protection. Product labels may be protected as pictorial or drawing works.
  • Museum exhibitions may benefit from copyright protection if, for instance, original dramatic, dance, pictorial or drawing, sculpture, cartoon and comic book and/or architectural protectable elements are present.
  • Original elements in websites, recipes and maps that qualify as literary or artistic works are copyrightable.
  • Perfumes and recipes may not benefit from copyright protection. These goods may obtain trademark protection if the legal requirements are fulfilled.

A person whose name or pseudonym, either known or registered, appears as that of the author of a work shall be considered such in the absence of proof to the contrary, and actions brought by that person for the violation of their rights shall consequently be entertained by the competent authorities and/or courts.

With regard to works written under a pseudonym or whose authors have not made themselves known, litigation for the protection and enforcement of the rights therein shall be the responsibility of the person who makes them known to the public with the author’s consent. This responsible person shall serve as an administrator until the owner of the rights appears in the concerned proceedings, unless previously agreed otherwise.

According to the FCA, works of joint authorship are those that have been created by two or more authors and rights shall accrue to all the authors equally, unless otherwise agreed or unless the authorship of each creator is specified.

In order to exercise the rights established by the FCA, the consent of a majority of the authors is required, which will bind all. In that case, the minority is not compelled to contribute to the expenses but may have access to the benefits obtained. When the majority makes use or exploits the work, it will deduct from the total collection the amount of expenses incurred and will give the minority the corresponding participation. When the part made by each of the authors is clearly identifiable, they may freely exercise the rights referred to in the FCA in the part corresponding to them. Unless otherwise agreed, each of the co-authors of a work may apply for registration of the complete work with the National Institute of Copyright (INDAUTOR).

Unless otherwise agreed, the copyright in a work with music and words shall belong in equal shares to the author of the literary part and to the composer of the musical element. Each may freely exercise the rights in the part attributable to them or in the whole work, and in the latter case they shall notify the other co-author, mentioning that co-author’s name on the publication, and in addition shall pay them the share to which they are entitled when the rights are exercised for profit-making purposes. Unless otherwise agreed, a film producer shall be considered the owner of the economic rights in the entire work.

Upon the death of one of the co-authors or holders of the economic rights without heirs, their right shall accrue to the other co-authors.

The FCA recognises the protection of copyright for pseudonymous works. Anonymous works may be freely used until the author makes themselves known or there is an identified owner of economic rights. 

In terms of authorship, works in Mexico can be as follows:

  • known works containing a mention of the author’s name or of a sign or signature by which they are identified;
  • anonymous works without any mention of the author’s name or of a sign or signature identifying them; or
  • pseudonymous works disclosed under a name, sign or signature that does not reveal the author’s identity.

The owner of the moral rights may at any time:

  • decide whether the work is to be disclosed and if so in what form, or whether it is to remain unpublished; and
  • demand recognition of their authorship in relation to the work created or decide that it is to be disclosed as an anonymous or pseudonymous work.

Any person, whether natural person or legal entity, who publishes a work must state the author’s name or pseudonym, or if the work is anonymous.

A person whose name or pseudonym, either known or registered, appears as that of the author of a work shall be considered such in the absence of proof to the contrary, and actions brought by that person for the violation of their rights shall consequently be entertained by the competent courts.

In Mexico, there is no concept of “orphan works". Should there be no author, the rights would fall to the heirs.

As per the FCA, collective works are those created by the initiative of a natural or legal person who publishes and discloses the work under its direction and name and in which the personal contribution of the authors who participated is joined in the unit for which it has been conceived, without it being possible to attribute to each of them a different and undivided right over the entire work.

There are no specific provisions in the FCA regarding the way collective works are exploited.

Only natural persons can be considered authors of works in Mexico. A corporation in Mexico cannot be considered the author of a work, but it can be the owner of the economic rights by means of a contract or work relation, in such a way that the author is the natural person who has created a work and the corporation can be owner of the copyright.

Unless otherwise agreed, the person, whether natural person or legal entity, who commissions the production of a work or produces such a work with others working for remuneration shall enjoy the ownership of the economic rights therein, and the rights relating to the disclosure and integrity of the work and the making of collections involving this type of creation shall accrue to them. Yet, it is important to consider that in such scenario there must be an agreement in writing clearly indicating that the work was commissioned.

Works created in official government service, entities at different levels of government or universities are understood to be under the terms of the paragraph above, unless otherwise agreed.

In the case of a work carried out as a result of an employment relationship, in the absence of any agreement to the contrary, it will be presumed that the economic rights are divided equally between the employer and the employee. The employer may disclose the work without the employee's authorisation, but not vice versa. In the absence of a written contract of employment, the rights to property shall be vested in the employee.

The owners of the economic rights may authorise or prohibit:

  • the reproduction, publication, editing or material fixation of a work, in the form of copies or originals, regardless of media;
  • the communication of the work to the public in any of the following ways:
    1. public presentation, recitation and performance in the case of literary and artistic works;
    2. public showing by any means or process in the case of literary and artistic works;
    3. public access by telecommunication;
    4. making the work available to the public;
  • the public transmission or the broadcasting of their works by any process, including the transmission or retransmission of the works by:
    1. cable;
    2. fibre optic;
    3. microwaves;
    4. satellite;
    5. any other known or emerging means;
  • the distribution of the work, including sale or other forms of transfer of the ownership of the physical material in which it is embodied, and any form of transfer of the use or exploitation thereof; where distribution is made by means of sale, the right of opposition shall be considered exhausted on the first sale; 
  • the importation into the national territory of copies of the work made without authorisation;
  • the disclosure of derived works, in any of the forms that such works may take, including translations, adaptations, paraphrased versions, arrangements and transformations; and
  • any public use of the work except in cases expressly provided for in the FCA.

Economic rights shall remain in force for:

  • the life of the author and 100 years after their death. When the work belongs to two or more co-authors, the 100 years shall be counted as from the death of the last co-author; and
  • one hundred years following disclosure of the work.

Economic rights can be recaptured since assignments are normally temporary and, thus, the rights may eventually return to the author. If the owner of the economic rights is different from the author and dies without heirs, the rights will revert to the author.

The owner of the economic rights may freely, subject to the provisions of the FCA, transfer their economic rights or grant exclusive or non-exclusive licences for use. Any transfer of economic rights must be in exchange of a consideration and temporary. In the absence of agreement on the amount of remuneration or the procedure for setting it, or on the time limits for the payment thereof, the competent courts shall decide the matter.

Any licence affording exclusive rights shall be expressly granted as such and shall give the licensee, where not otherwise agreed, the right to exploit the work to the exclusion of any other person, and the right to grant non-exclusive authorisations to third parties.

Transfer of Economic Rights

In the absence of any express provision, any transfer of economic rights shall be for a term of five years. A term of more than 15 years may only be agreed upon in exceptional cases, dictated by the nature of the work or the scale of the required investment. For example, the exploitation of cinematographic films is a scenario in which more than 15 years may be agreed upon since the investment justifies it. Software constitutes an exception in that the assignment of copyright over software is not subject to any limitation in respect to time.

Acts, agreements and contracts by which economic rights and licences granted are transferred shall invariably be made in writing. Failure to do so will result in the agreement being null and void. They shall be entered in the Public Copyright Register in order to have effects against third parties. Agreements duly executed and recorded in the Public Copyright Register cannot be voided or invalidated against bona fide third parties. Agreements transferring copyrights signed before a notary public and recorded with the Public Copyright Registry can be executed before a judge to compel compliance through a special executive proceeding.

Any transfer of economic rights shall provide for the grant to the author or to the owner of the economic rights of a proportional share in the proceeds from the exploitation concerned, or a predetermined, fixed amount of remuneration. That right is non-renounceable.

Economic rights shall remain in force for the life of the author and 100 years after their death, at which point heirs may exercise and dispose of economic rights.

When the work belongs to two or more co-authors, the 100 years shall be counted as from the death of the last surviving co-author.

If the owner of the economic rights is different from the author and dies without heirs, the rights will revert to the author.

There is no minimum age requirement in the copyright law; however, in Mexico, only individuals of legal age (18 years and over) may exercise legal rights. Therefore, for minors, the general provisions established in the Federal Civil Code shall apply. Essentially, the minor would have to exercise their rights through their parents or other legal guardian, a duly appointed tutor for instance in the case of orphans.

The following types of specific contracts for the transfer of economic copyright are regulated by the relevant legislation:

  • Contracts for the Publication of a Literary Work;
  • Contracts for the Publication of Musical Works;
  • Stage Performance Contracts;
  • Broadcasting Contracts;
  • Audio-visual Production Contracts; and
  • Advertising Contracts.

The above are not the only form of transfer of economic copyright, as there are also Contracts of Work Made for Hire, Labour Contracts, licences for the use of works and other contacts in multiple fields which may involve the transfer of these rights.

Acts, agreements and contracts by which economic rights and licences granted are transferred shall invariably be made in writing. Failure to do so will result in the agreement being null and void. Any transfer of economic rights shall provide for the grant to the author or to the owner of the economic rights of a proportional share in the proceeds from the exploitation concerned, or a predetermined, fixed amount of remuneration. That right is non-renounceable. The acts, agreements and contracts by which economic rights are transferred shall be entered in the Public Copyright Register of INDAUTOR in order to have effects against third parties.

With regard to the distribution of the work, where distribution is made by means of sale, the right of opposition shall be considered exhausted on the first sale. As an exception to this provision, the owner of economic rights with respect to software or a database will maintain, even after the sale, the right to authorise or prohibit leasing. This will not apply, however, when the database or software does not constitute essential subject matter of a licence.

The author is the sole, original and perpetual owner of the moral rights in works created by them. Moral rights shall be regarded as vesting in the author and shall be inalienable, imprescriptible, non-renounceable and non-sizable. The owner of the moral rights may at any time:

  • decide whether (and in what form) the work is to be disclosed, or whether it is to remain unpublished;
  • demand recognition of their authorship in relation to the work or decide that it is to be disclosed as an anonymous or pseudonymous work;
  • demand respect for the work and object to any distortion, mutilation or other modification thereof, or any act or action in relation to the work that might detract from its merit or prejudice its author’s reputation;
  • amend the work;
  • withdraw the work from the market; and
  • object to the attribution as author of a work not created by them.

The right to exercise moral rights shall belong to the creator of the work or their heirs.

Heirs may only exercise the rights described in points one, two, three and six above. Where applicable, the federal government may exercise those described in points three and six.

The importation, manufacture, distribution and use of apparatus, or the rendering of services, the purpose of which is to remove the technical protection of transmissions by electromagnetic waves and over telecommunication networks, is forbidden and constitute trade-related infringements.

A person shall be liable for damages and lost profits if, without permission, they:

  • decrypt a coded program-carrying satellite signal;
  • receive and distribute a coded program-carrying a satellite signal that has been unlawfully decrypted; or
  • participate or assist in the manufacture, importation, sale or rental, or supply, a device or system that substantially aids in the decrypting of a coded program-carrying satellite signal.

As per Mexico's Federal Criminal Code, manufacturing for profit a device or system that will deactivate the electronic protection devices of a computer program is considered a felony, punishable with three to ten years' imprisonment and a fine.

A recent reform has greatly enhanced the protection granted in respect to technological protection measures and digital rights management information.

Disabling or otherwise eluding or helping others elude technological protection measures is illegal and can result in considerable fines not only for the individual eluding the measures but also for anyone helping or offering to help do so. This prohibition extends to importing, offering, selling, manufacturing and in general making available any product or services that would be used for that purpose or that would be designed for that purpose or that would be advertised for that purpose. If the elusion of technological protection measures or the actions on products or services used to elude technological protection measures are made for commercial gain, criminal liability may be imposed.

The law protects rights management information in a similar manner. Deleting or altering the rights management information on a work or interpretation or recording is punished by severe fines, so is knowingly distributing, importing or selling copies thereof with the deleted or altered rights management information. If such actions are done for profit, criminal liability may be imposed as well.

The law balances the protection over technological protection measures and rights management information with several exceptions such as testing the security of computer systems, reverse engineering of software to ensure interoperability, protecting minors from inappropriate contents, protecting personal data, etc. The law further delegates into the Mexican National Copyright Institute the authority to consider and approve additional exceptions.

A collective management society (CMS) is a non-profit legal entity that is set up with the purpose of protecting both national and foreign authors and owners of neighbouring rights, and collecting and delivering the sums payable to them by virtue of their copyright or neighbouring rights.

The successors in title of authors and owners of neighbouring rights residing in Mexico may belong to a CMS. Belonging to a CMS is entirely optional and authors and rightsholders may exercise their rights individually if they prefer.

The societies shall be formed for aiding their members and shall base their actions on the principles of collaboration, equality and equity.

The right to operate as a CMS requires authorisation by INDAUTOR, which shall order publication of the said authorisation in the Official Gazette of the Federation. Said authority shall reserve the right to conduct audits and investigations at the request of ten percent of the members of the society.

Multiple CMSs

There can be more than one CMS, and the administrative authority on copyright can authorise societies that may operate to defend the rights and prerogatives of authors or holders of related rights and their successors in title, in accordance with the following:

  • by branch or category of work creation;
  • by category of holders of related rights; and
  • by mode of exploitation, where several categories of creation of works or holders of related rights are involved, and provided that the nature of the rights entrusted to their management so justifies.

CMS Aims

A CMS shall pursue the following aims:

  • exercise the economic rights of their members;
  • keep at the disposal of users, on their premises, the repertoires that they manage;
  • negotiate with users, according to the terms of the relevant mandate, licenses for the use of the repertoires that they manage, and conclude the appropriate contracts;
  • monitor the use of authorised repertoires;
  • collect, on behalf of their members, the royalties payable for the copyright or neighbouring rights that belong to them, and hand those royalties over after deduction of the society’s administrative costs, provided that express terms of reference exist;
  • collect and hand over royalties accruing to the owners of foreign copyright or neighbouring rights, either themselves or through a CMS that represent them, provided that an express mandate has been granted to the Mexican CMS, and after deduction of administrative costs;
  • promote or carry out assistance services for the benefit of their members, and support promotional activities relating to their repertoires;
  • receive donations made to them and accept bequests and legacies; and
  • any other aims that accrue to them according to their nature and which are compatible with the foregoing and with the status of intermediaries between their members and users or the authorities.

CMS Obligations

A CMS has the following obligations:

  • intervening in the protection of the moral rights of their members;
  • agreeing to manage the economic rights or neighbouring rights that are entrusted to them in accordance with their objective or aims;
  • entering their articles of association and statutes in the Public Copyright Register once they have been licensed to operate, as well as the rules of collection and distribution, contracts concluded with users and the representation contracts that they have with counterpart societies, and the instruments and documents by which members of their governing and supervisory bodies, directors and agents are appointed; all within 30 days following approval, conclusion, election or appointment;
  • providing all members equal treatment;
  • providing all users equal treatment;
  • negotiating the amount of the royalties payable by users of the repertoire that they manage and, where no agreement is reached, proposing the adoption of a general tariff to INDAUTOR and submitting supporting evidence;
  • providing their members with an annual, detailed statement of the amount each member has received, with copies of the accounts, the amounts sent abroad through them and the amounts that they are holding pending distribution to Mexican authors or remittance to foreign authors, accompanied by explanations of the reasons for which the said amounts are still pending; the statements shall include a list of the members of the society concerned, with the votes to which they are entitled;
  • sending copies of the documentation on which a given settlement is based to the owners of the economic rights that they represent; the right to receive the documentation evidencing settlement shall be non-renounceable; and
  • paying the royalties collected through their participation, with any interest that the said royalties may have generated, within a period not exceeding three months following the date on which the royalties were received by the society.

In a music publishing contract, the author or owner of the economic rights assigns the right of reproduction to the publisher and entitles them to carry out the fixation and phonographic reproduction of the work, its audio-visual synchronisation, communication to the public, translation, arrangement or adaptation, and any other form of exploitation provided for in the contract; the publisher shall undertake to disclose the work by all means available to them, receiving in return a share in the economic profits.

However, in order to carry out audio-visual synchronisation, adaptation for advertising purposes, translation, arrangement or adaptation, the publisher must in each specific case have the express permission of the author or their successors in title.

Producers of phonograms have neighbouring rights upon their music recordings which are independent of the copyright over the musical work. The producer company is allowed to oppose the reproduction or exploitation of its recordings, the import of unauthorised copies, the leasing, distribution or making available of the recording, etc. However, once the recording is lawfully made available in commerce, the record company cannot oppose its public communication and only may demand payment for use.

Literary and artistic works that have been disclosed may be used only in the following cases without the consent of the owner of the economic rights and without payment, provided that the normal exploitation of the work is not adversely affected thereby and provided also that the source is invariably mentioned, and that no alteration is made to the work.

  • Text quotation, provided that the quoted amount may not be considered a substantial, simulated reproduction of the contents of the work.
  • Reproduction of articles, photographs, illustrations and commentary relating to current events that have been published in the press or broadcast by radio or television, or any other medium of communication, if this has not been expressly prohibited by the owner of the rights.
  • Reproduction of parts of the work for the purposes of scientific, literary or artistic criticism and research.
  • Reproduction of a literary or artistic work once, and in a single copy, for the personal and private use of the person doing it, and without profit intent. A legal entity may not benefit from this provision unless it is an educational or research institution or is not devoted to commercial activities.
  • Reproduction of a single copy by archives or a library for reasons of security and preservation where the work is out of print, no longer catalogued and at risk of disappearing.
  • Reproduction for the purposes of evidence in judicial or administrative proceedings.
  • Reproduction, communication and distribution in drawings, paintings, photographs and audio-visual processes of works that are visible from public places.
  • Publication of a literary and artistic work without profit-making purposes for persons with disabilities.

Additionally, the following may be done without authorisation.

  • Literary and artistic works may be used in shops or establishments open to the public that trade in copies of the said works, provided that no charge is made for admission and that the use does not go beyond the place in which the sale is effected and serves the sole purpose of promoting the sale of copies of the works.
  • Ephemeral recordings may be made, subject to the following conditions:
    1. transmission shall take place within the period agreed for the purpose;
    2. no related or simultaneous broadcast or communication shall be made on the pretext of the recording; and
    3. the recording shall afford entitlement to one broadcast only. The recording and fixation of the image and sound, carried out in the manner described above, shall not require any additional payment other than that due for the use of the works. This provision shall not apply where the authors or performers have entered into an agreement for consideration that authorises subsequent broadcasts.

Limitations to Copyright

The Mexican system provides for specific limitations to copyright and related rights in which the publication or translation of literary or artistic works necessary for the advancement of national science, culture and education is in the public interest. When it is not possible to obtain the consent of the owner of the corresponding economic rights, and by means of the payment of a compensatory remuneration, the Federal Executive, through the Ministry of Culture, ex officio or at the request of a party, may authorise the publication or translation mentioned. The foregoing shall be without prejudice to the international treaties on copyright and related rights signed and approved by Mexico. Upon the death of one of the co-authors or holders of the economic rights without heirs, their right shall accrue to the other co-authors.

The Mexican legal system provides legal certainty and guarantees to cultural industries to establish clear and precise exceptions instead of having general and ambiguous legal provisions subject to interpretation that is not otherwise clear or secure for the sector.

An exception to copyright for private copying is established in Mexico: a work may be reproduced, in a single copy, for the personal and private use of the person making it and without profit-making purposes; however, legal entities may not avail themselves of this, except in the case of an educational or research institution, or one not engaged in commercial activities.

With respect to software, the lawful user of a computer program is allowed to make the copies authorised by the licence, or at least one copy if necessary for the operation of the program or for backup purposes.

Literary and artistic works that have been disclosed may be used without the consent of the owner of the economic rights and without remuneration, provided that the normal exploitation of the work is not adversely affected, that the source is mentioned and that no alteration is made to the work. This includes the reproduction, communication and distribution of drawings, paintings, photographs and audio-visual processes of works that are visible from public places.

However, certain works of substantial historic or artistic value may be declared as national monuments by the Mexican government. Such is the case of all the works from artists such as Diego Rivera and Frida Kahlo, constructions such as Mexico’s Independence Memorial, pre-Columbian buildings, etc. For such works, authorisation will be needed from either the National Institute of Fine Arts (INBA) or the National History Institute (INAH) to make a replica of the monument, at any scale and with any technique. The permit will only be granted if the proposed use is respectful and will not normally be granted if the use involves the advertising of tobacco or alcoholic beverages.

The law differentiates internet access providers who provide connection to the internet and online service providers who store content online at the request of the user or link users to the same. A social network or search engine would fall within the definition of an online service provider. Neither is required to perform an active screening of contents for copyright infringement.

For online service providers such as social networks and search engines there is a safe harbour provision. They can avoid liability if they swiftly remove access to infringing contents as per a notice received from the copyright holder or from a competent government authority. They must have a policy in place to suspend the accounts of repeat offenders. Users who upload allegedly-infringing contents may submit a counter-notice defending a removed content, in which case the online service provider may restore the content if the copyright holder does not bring a legal challenge within 15 days. Submitting a false statement in a notice or counter-notice can result in a fine.

Regarding internet access providers, they will not be liable for contents transmitted or stored in their systems if they do not choose the contents, their receivers and the beginning of the transfer and if they include and do not interfere with technological measures that identify and protect copyright, provided such measures shall not constitute an undue burden on the internet access provider.

An exception to copyright for satire and/or parody is not established in the FCA.

The Mexican Constitution establishes freedom of expression of ideas in all its manifestations and guarantees the right to information. The Universal Declaration of Human Rights, to which Mexico is a party, also protects this right.

The registration of a literary or artistic work may not be refused or suspended in Mexico on the ground that it is contrary to morality, respect for private life or public order, except by court ruling.

The exceptions described in 7.1 Fair Use Doctrine/Fair Dealing, have, among others, the purpose of protecting freedom of speech, right of information and other human rights. However, the exercise of these rights may not affect the exclusive rights afforded by copyright. 

Performers

Performer is the actor, narrator, speaker, singer, musician, dancer or any other person who performs a literary or artistic work or an expression of folklore or who engages in a similar activity, even though they may have no pre-existing text to guide their performance.

The performer shall have the right to have their name associated with his/her performances, and to object to any distortion or mutilation of his/her performance or other adverse act in relation to it that might damage his/her prestige or reputation.

Book Publishers

The book publisher is the natural person or legal entity that chooses or plans a publication and carries out the production directly or through third parties. 

Book publishers shall have exclusive rights in the typeface and graphic features of each book insofar as they are original.

Producers of Phonograms

A producer of phonograms is the natural person or legal entity who first fixes the sounds of a performance or other sounds, or a digital representation thereof, and shall be responsible for the editing, reproduction and publication of phonograms. 

Producers of phonograms shall be entitled to receive remuneration for the use or exploitation of their phonograms for direct or indirect profit-making purposes, in any medium or communication to the public or making them available.

Producers of Videograms

A producer of videograms is the natural person or legal entity who first fixes related images, with or without incorporated sound, that give an impression of movement, or a digital representation of such images, whether constituting or not constituting an audio-visual work.

The producer shall enjoy with respect to their videograms the right to authorise or prohibit their reproduction, distribution and communication to the public.

Broadcasting Organisations

An entity holding a concession or license that is capable of emitting sound or visual signals or both that may be received by an audience of more than one person shall be considered a broadcasting organisation. They have the right to authorise the re-transmission, delayed transmission, public communication and fixation and copying of their broadcasts. In addition, the unauthorised decryption of signals can constitute a crime.

Mexico's copyright regulation does not provide for specific contracts in order to transfer, licence or sell neighbouring rights.

The following may be done without authorisation:

  • literary and artistic works may be used in shops or establishments open to the public that trade in copies of the said works, provided that no charge is made for admission and that the use does not go beyond the place in which the sale is effected and serves the sole purpose of promoting the sale of copies of the works; and
  • ephemeral recordings may be made, subject to the following conditions:
    1. transmission shall take place within the period agreed for the purpose;
    2. no related or simultaneous broadcast or communication shall be made on the pretext of the recording; and
    3. the recording shall afford entitlement to one broadcast only.

The recording and fixation of the image and sound, carried out in the manner described above, shall not require any additional payment other than that due for the use of the works. The provisions of this shall not apply where the authors or performers have entered into an agreement for consideration that authorises subsequent broadcasts.

Public Utility

The FCA provides that the publication or translation of literary or artistic works necessary for the advancement of national science, culture and education is considered of public utility. When it is not possible to obtain the consent of the owner of the corresponding economic rights, and through the payment of compensatory compensation, the Federal Executive, through the Ministry of Culture, ex officio or at the request of the party, may authorise the publication or translation. The foregoing will be without prejudice to international treaties on copyright and related rights signed and approved by Mexico.

The law contains a catalogue of two distinct kinds of copyright infringements. First there are infringements to copyright law, which refer to administrative breaches of the obligations set forth by the law to various individuals and entities, and can be punished by a fine imposed by the National Copyright Institute:

  • the execution by the publisher, corporation, producer, employer, broadcasting organization or licensee of a contract which purpose is the transfer of copyright in a manner that is contrary to the provisions of the FCA;
  • violation by the licensee of terms of a compulsory licence regulated by the FCA;
  • purporting to be a CMO without having obtained the necessary registration with INDAUTOR;
  • failure, without just cause, to supply to INDAUTOR, when serving as a director of a CMO, the information and documents required by the FCA;
  • failure to insert the notice “Reserved Rights”, or its abbreviation “D.R.”, followed by the © symbol, the full name and address of the copyright holder and the first year of publication in a published work;
  • omission from a publication of the information required from editors for published works by the FCA, or inclusion of false information;
  • omission from a publication of the information required from printers for published works by the FCA, or inclusion of false information;
  • failure to fix on a phonogram the information required by the FCA;
  • publication of a work, being authorised to do so, without a mention on the copies of the said work of the name of the author, translator, compiler, adapter or arranger;
  • publication of a work, being authorised to do so, in a manner that damages the author’s reputation, and, if applicable, of the translator, compiler, arranger or adapter;
  • publication in anticipation of the federal government, the states or the municipalities, and without authorisation, of works created in the course of official duties;
  • fraudulent use in a work of a title that causes confusion with a work published previously;
  • fixation, performance, publication, communication in any way or use in any form of a literary or artistic work of popular culture regulated by the FCA without any mention of the community or ethnic group or, where applicable, the region of the Republic of Mexico to which it is specific; and
  • any other offending acts deriving from interpretation of the FCA and the Regulations thereto.

In addition, the law foresees the following infringements of copyright and neighbouring rights. These infringements are punished by the Mexican Institute of Industrial Property:

  • communication or making available to the public or public use of a protected work by any means and in any form without the express prior authorisation of the author, their lawful heirs or the owner of the author’s economic rights;
  • use of the likeness of a person without permission or that of their successors in title;
  • fixing, production, manufacture, stocking, distribution, transportation or marketing of copies of works, cinematographic and other audio-visual works, phonograms, videograms or books protected by copyright or by neighbouring rights, without the authorisation of the respective holders under the terms of the FCA;
  • offering for sale, stocking, transporting or distributing works protected by the FCA that have been distorted, altered or mutilated without the permission of the owner of the copyright;
  • importation, sale, rental or any act that affords possession of a device or system whose purpose is to deactivate electronic devices for protection of a computer program;
  • retransmission, fixation, reproduction and dissemination to the public, without due authorisation, of the broadcasts of broadcasting organisations;
  • use, reproduction or exploitation of a reserved rights notice or computer program without the consent of the owner; and
  • use or exploitation of a name, title or denomination or physical or psychological characteristics or operational characteristics in such a way as to mislead or cause confusion with a reservation of rights that is protected.

As indicated above, the elusion of technological protection measures and the deletion or alteration of digital rights management information can also be punished. In addition, the Federal Criminal Code can impose criminal liability on certain forms of infringement made for profit, such as making unauthorised copies of works for profit, eluding technological measures for profit, etc.

Copyright holders may file civil, criminal and administrative complaints, depending on the nature of the infringement and the right that will be enforced. Defences include limitations to copyright, arguing that authorisation was obtained, that the plaintiff does not hold the copyright, etc.

In disputes over rights protected by the FCA, parties may submit their dispute to mediation (settlement meetings or arbitration proceedings as ADR) or arbitration.

The plaintiff has three routes to pursue infringement.

First, to initiate an administrative proceeding before the Mexican Institute of Industrial Property or the National Copyright Institute, depending on the specific provision that has been allegedly infringed. This proceeding can be initiated through a formal complaint or ex officio. If an infringement is found, a severe fine will be imposed and an injunction issued ordering the infringing conduct to desist under threat of additional fines.

Second, the plaintiff may file a civil claim for damages before a civil court. There is concurrent jurisdiction and the claim may be brought in either a state or federal court. The procedural rules would depend on whether it is a state court or a federal court.

Third, certain kinds of copyright infringement constitute federal crimes and the rights-holder may file a claim with a federal public prosecutor. The public prosecutor will then, with the help of the rights-holder investigate and build up the case for submission to the court. The court will then take control of the investigation and, if the legal requirements are met, the case will move forward to a criminal trial.

Depending on their nature, copyright proceedings may be initiated before INDAUTOR, the MIIP, civil courts or criminal courts.

The federal courts shall hear disputes arising from the application of the Federal Copyright Act, but where such disputes affect only particular interests, they may be heard, at the choice of the plaintiff, by the local (state) courts of the common order.

According to amendments made to the FCA in 2015, for the exercise of the actions derived from the FCA and its Regulations, it will not be necessary to exhaust any administrative procedure or previous action as a condition for the exercise of such actions, so the affected party may choose to go to a specialised authority or directly to the federal courts.

The parties are the complainant, the alleged infringer and, in accordance with the supplementary provisions, any interested third party. Licensees are free to participate in the procedure with the authorisation of the licensor.

Third parties are treated as parties to the proceedings with full procedural guarantees.

The holders of the rights recognised by the FCA, their representatives or the CMSs that represent them may request the granting and execution of the following precautionary measures to prevent, impede or avoid the violation of their economic rights:

  • suspension of public representation, communication and/or execution;
  • seizure of the tickets and/or income obtained either before or during the public representation, communication and/or execution;
  • precautionary seizure of material instruments, equipment or supplies used in the public representation, communication or execution; and
  • when the preceding measures are insufficient to prevent or avoid the violation of copyright, the seizure of commercial negotiation will be decreed.

In the cases foreseen in the previous sections, a bond should be posted to cover possible damages. At least 72 hours before submitting the judicial request, the owner must give written notice to the alleged infringer of the violation of their rights.

The use of experts in judicial proceedings depends on the judge and the parties involved or the enforcement authorities. Their use is gradually increasing.

Within the private arbitration procedure, the use of private experts is indispensable for the alternative resolution of copyright disputes.

The Mexican legal system contemplates the seizure of counterfeit goods by means of an administrative procedure before the Mexican Institute of Industrial Property or before the Office of the Attorney General, but it does not contemplate to date officio powers of the customs authority for the seizure. Instead,  customs officials will have to inform the copyright holders so that they initiate the respective legal proceedings to hold or seize the infringing goods.

In general, the following remedies and sanctions are available for copyright infringement:

  • precautionary seizure of allegedly infringing goods;
  • permanent seizure and destruction of infringing goods;
  • closure of infringing establishment;
  • severe fines, with the forcing of their payment, including a seizure and liquidation of assets if they are not paid;
  • damages;
  • lost profits; and
  • imprisonment for the infringer who commits a copyright violation that constitutes a felony.

As explained in 9.3 Proceedings Available to the Copyright Holder, under certain circumstances, administrative infringements may qualify as criminal offences. Civil sanctions may also apply depending on each case under the 2014 reforms to the Federal Copyright Act.

The type of appellate procedure will depend on the nature of the proceeding with respect to which the appeal is filed (eg, administrative, civil, criminal). Decisions issued by INDAUTOR and the MIIP may be challenged through a writ of review, which is filed before the same administrative authority. 

Another alternative for challenging decisions issued by INDAUTOR and the MIIP is filing an appeal before the Specialised Chamber on Intellectual Property Matters of the Federal Administrative Justice Tribunal (FAJT). This alternative is available against first instance decisions of the referred administrative authorities and is also a means of appealing decisions regarding writs of review.

The decisions of the FAJT may be challenged before federal circuit courts. This is usually the last instance; however, in certain cases, decisions of the circuit courts may be appealed before the Supreme Court.

There are provisions in the Commercial Code that allow nine days to file an appeal against a final judgment, six days for an interlocutory judgment or an order for immediate processing, and three days to file a preventive appeal against an interlocutory judgment or an order for processing jointly with the final judgment.

Civil Actions

For civil actions, once the decision of the case is issued, the parties can appeal and raise before the appellate court all the objections they made during the initial process plus the objections they might make on the merits against the decision itself. For a criminal case, depending on the stage of the proceedings and the motive for the objection, the party may appeal in similar fashion to a civil case or argue a violation of human rights before a constitutional judge.

In administrative proceedings, each party is responsible for bearing their own costs and expenses.

In civil proceedings, courts may decide on the payment of costs of litigation that are commonly awarded to the winner of a trial when the loser files appeals to delay the court proceedings and the enforcement of the judgment.

The FCA establishes two alternative procedures for the resolution of disputes related to the subject matter of copyright and related or associated rights, namely conciliation and arbitration.

Conciliation proceedings shall take place before the INDAUTOR, at the request of either of the parties, in order to amicably settle a dispute that has arisen out of the interpretation or implementation of the FCA. The proceeding is initiated on a complaint, which is filed in writing with the INDAUTOR by the person who considers that their copyright, neighbouring rights or other rights protected under the FCA have been adversely affected.

The deliberations of the hearing shall be considered confidential, and consequently all records thereof shall be notified only to the parties to the dispute or to competent authorities that request them.

Where the conciliation procedure is not successful, the INDAUTOR shall urge the parties to resort to arbitration. The maximum duration of the arbitration shall be 60 days, which period shall be calculated from the day following the date specified in the document containing the acceptance of the arbitrators. The INDAUTOR publishes every year a list of credited arbiters for copyright disputes.

It should be noted that both alternative procedures for the resolution of disputes must have the express consent of the parties for their origin, otherwise any dispute must be dealt with before the competent courts.

Basham, Ringe y Correa S.C.

Paseo de los Tamarindos
400-A 9° Piso
Bosques de Las Lomas
Ciudad de México

+52 55 5261 0600

+52 55 5261 0411

mbusto@basham.com.mx www.basham.com.mx
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Law and Practice

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Basham, Ringe y Correa S.C. is a full-service law firm with a strong presence in Latin America, and is the Lex Mundi representative for Mexico. Clients include prominent international corporations, many of which are on the Fortune 500 List, medium-sized companies, financial institutions and individuals. The firm offers in-depth knowledge of the domestic and international markets, including economic trends and current affairs, and many of its lawyers and other professionals have completed graduate studies at foreign universities and worked at companies and law firms abroad.

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