The LegalFácil Guide to Intellectual Property Law in Chile: Copyright

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The LegalFácil Guide to Intellectual Property Law in Chile: Copyright

Background

There have been significant advances in Chile's copyright law over the last decade, as well as an increase in cultural and cultural awareness of copyright's importance. In 2010, the Copyright Law was revised and updated, modernizing and strengthening copyright protection in the country and aligning Chile with the TRIPS Agreement and the “TRIPS Plus” standards of Chile’s FTAs.

 

The Berne Convention

Chile is a member of the Berne Convention for the Protection of Literary and Artistic Works (1886), the most important international treaties devoted to copyright law. The Berne Convention protects literary and artistic works.

In Chile as in the U.S., software code is protected under copyright law. In the U.S. it may also be subject to patent protection, while in Chile software as such is not protected under patent law.

According to the Berne Convention, a work is eligible for copyright protection if it is original (that is, if it originated in the author to whom the rights would be granted) and is significantly different from works already in existence.  Needless to say, these criteria leave plenty of room for interpretation.

 

National Treatment

There are two fundamental rules of the Berne Convention. One is that each member country is obligated to protect a work originated in any of the other member countries in the same way that it protects a work published within its own borders. A work originally published in the U.S. has the same rights in Chile as a work originally published in Chile, and vice versa.

 

No Formalities

The second important rule is that a work is granted copyright protection automatically upon being created; the creator doesn’t have to register the work or make any declaration (or, as the treaty establishes, will "not be subject to any formality") in order to have legal copyright in any and all of the Berne Union countries.

 

Why You Should Register Your Copyright

Nevertheless, in Chile as in other Berne countries, it is a very good idea to register your copyright, as doing so will give you a legally official authorship over the work and will establish a valid date of creation.  These will be especially useful if you want to demand an injunction or sue for damages due to an infringement down the road.  Should that happen, your authorship and the date of creation will already already been certified, so you'll only need to prove to the court that your copyright has been violated.

 

Author's Rights

While Chilean copyright law shares much in common with the copyright law of other members of the Berne Union, there are certain ways in which it differs from some of them, particularly that of the U.S.

At root, the differences between Chilean and U.S. copyright law are historical: Chilean copyright law was forged in the French or “continental” tradition, based on the French notion of the droit d’auteur, or author’s rights (derecho de autor in Spanish). It is distinct from the Anglo-Saxon, common-law tradition of copyright from which U.S. law derives.  This historical divergence, though tempered by the greater uniformity of modern-day copyright law, is still evident in a several ways.  Most notably, the author's rights tradition makes an important distinction between moral and economic rights, while the Anglo-Saxon tradition does not.

 

Moral and Economic Rights

Both the U.S. and Chile protect copyright holders’ economic rights, but Chile (as well as many other countries) gives special importance to the author' moral rights.

Economic rights are those concerning how the work is sold, commercialized, and licensed, as in the acts of publication, reproduction, adaptation and transformation; the copyright holder, in short, controls how money will be made through the use of her property.

Moral rights, on the other hand, include the right always to be named as the author of the work (right of attribution), the right to have the work published anonymously, and the right always to have control over the integrity of the work. The latter means that the author has the right to object to any distortion, mutilation or other derogatory action in relation to the work, which could be prejudicial to his honor or reputation.

For example: If a photographer publishes a photograph in a magazine and then, some years later, that photograph is modified substantially and used in the cover design of a book, the photographer’s permission is necessary, not only because of the economic rights surrounding it but also because the modified image compromises the integrity (departs from the intended form) of the original work and might violate the author's moral rights.

Importantly, in Chile, only the economic rights over a work can be assigned to a third party, not moral rightsMoral rights are inalienable and always belong to the author; indeed, the author cannot waive, give up, sell, or give them away. In the U.S. and some other countries, moral rights may be transferred to third parties, just as economic rights can.

 

Duration of Copyright

The moral rights of an author are granted in perpetuity: fan author has the right to be named as the author and for the integrity of his work to be respected for the rest of her life, and upon death, this right is transferred to her heirs for the rest of their lives, as well. Moral rights are protected even when the work has entered the public domain.

Economic rights are granted to the author of most types of works including photographs for the duration of the author’s life plus 70 years – exactly as in the U.S. Works by more than one author are protected until 70 years after the last of the collaborators has died.

Actors maintain economic rights to recorded performances for 70 years from the date of the publication.  Interestingly, actors retain not only their moral rights but must be compensated for certain uses of their work, such as retransmissions on television, even if the economic rights belong to a third party.

In cases where copyright is bequeathed to an author’s heirs, it is done so like any other asset, according to prevailing estate and inheritance law.

 

Exceptions to Copyright

As in the U.S. and many other countries, there is a “fair use” law allowing limited use of texts and works protected by copyright under certain circumstances.  The new copyright law of 2010 expanded these exceptions, permitting, for example, libraries to photocopy lost or needed works that are otherwise unattainable, and permitting the reproduction of certain works for educational purposes.  Also, for educational, scientific, illustrative, critical, and certain other purposes, up to 10 lines of text may be quoted from a copyrighted work.

 

Registering Your Copyright

Registering your copyright is simple.  You and/or your lawyer may file your application and submit a copy of your work in person at, or by email to, the Intellectual Property Register, at the Departamento de Derechos Intelectuales (DDI, www.propiedadintelectual.cl).  It is not yet possible to file automatically online, though you can email your application and a copy of your work to a DDI representative, who then files your application by hand. Bear in mind that emailing your application and a copy of your work does not constitute digital filing strictly speaking: you are merely emailing it to a DDI representative, who then files your application manually.  To minimize the possibility of error and ensure that your application is submitted promptly and correctly, we recommend filing in person.  The DDI office is located in Santiago at Herrera 360.

The fees may be paid at the DDI by bank deposit or by electronic transfer to the Dirección de Bibliotecas, Archivos y Museos (DIBAM), of which the DDI is a part.  The DDI bank account is with Banco Estado.  Its account number is 9002383, and its institutional RUT 60.905.000-4.

You may download the application form and details regarding payment from the DDI website (www.propiedadintelectual.cl) or get it at the DDI office.

You must submit the following to the DDI:

  • The filled-in application form
  • A copy of your work in any commonly used format or file type such as PDF, CD, CD-ROM, .doc, .jpg, as applicable
  • If your lawyer is submitting the application for you, they must submit a power of attorney (POA), signed by you and legalized or  notarized.  This can be done from abroad at a Chilean Consulate, or in Chile in any notaría (notary's office).
  • If you want to license your work to third parties, you must sign a license agreement mentioning the registration number of the work, which must be registered at the DDI.   The license agreement will be issued its own registration number.  Registering the license agreement makes the agreement opposable to third parties, so this is highly recommended.

 

You will be granted your copyright number immediately with the filing of the form, and you may request a Registration Certificate that will take a couple of days to be issued.

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