MORAL RIGHTS IN MEXICO

Transcription

1 1 MORAL RIGHTS IN MEXICO Por Karla Alatriste Uhthoff, Gomez Vega & Uhthoff Diego Rivera, one of the most famous Mexican paintings and muralists, was commissioned in year 1932 by John D. Rockefeller Jr. to paint a mural at Rockefeller Center in New York City. The mural Man at the Crossroads contained an image of Vladimir Lenin, the Russian Communist Leader along with other communist images. Rivera was ordered by Mr. Rockefeller to delete Lenin s image from the mural, order that was not accepted by Rivera. The mural was fragmented into pieces and it was finally destroyed in the year Rivera painted his new version of the mural in Mexico City. This historical fact clearly reflects the need to protect author s moral rights, recognizing them, in first instance as the inalienable right of fathership and in second, as the perpetual right to have the work displayed, published, transmitted, etc. as the author initially intended, without the possibility of modifying, changing or affecting the work unless the author consents such actions. The above facts, in light of the Berne Convention for the Protection of Literary and Artistic Works, could have established a violation to Diego Rivera s moral rights at such époque, however, the United States of America was not signatory of the Berne Convention and moral rights did not enjoy having protection in the United States. Paradoxically, in the year 1934 the mentioned conduct by Rockefeller was also not having any impact in Mexico. As of 1870 s and up to 1948 copyrights were governed by civil law and they were just considered movable properties without their special characteristics of intangible intellectual property rights. With the enactment of the first Federal Copyright Law in 1948, Mexico adopted as part of its national legislation the copyright principals of the Berne Convention. It is important to remark that the Berne Convention was not ratified by Mexico until The Berne Convention was not part of the Mexican legal system until 1968, nevertheless in 1948 with the enactment of the first Mexican Federal Copyright Law, moral rights s protection were afforded for the first time in Mexico. At the present the Mexican copyright system recognizes that copyright is composed of two different rights, the moral rights and the economic or patrimonial rights. Both rights by operation of law pertain to the author, which in Mexico is the individual that creates the work using his intellect and talent. Economic rights grant to the author the authority to commercially exploit a work; to publicly communicate the work and, to prevent others from doing so without a proper written authorization. Economic copyrights initially belong to the author who is entitled to assign or license them to others or who can recognize that they pertain to a different holder by virtue of the existence of a work-for-hire or an employer-employee relationship. As a general rule, they are in force for the life of the author and 100 years after the author s death.

2 2 An individual or company different from the original author or authors can be recognized as the copyright owner only in what concerns to the economic aspects of the copyright, since the moral rights are perpetually owned by the author and its heirs. Moral rights are an expression of the author s personality. The moral rights are a set of rights or prerogatives related to the honor, prestige and reputation of the author and they are mainly focused to protect the authorship and the integrity of the work. According to our legislation, the author of any work has the following moral rights: I. Determine whether its work should be disclosed, the way to do such disclosure or to remain it undisclosed (right of publication). This prerogative means that the author as father of the work has the faculty to decide if the work should be published or disclosed to the public and the way the work should become known or if for any reason the author decides to keep the work unpublished. II. To demand the recognition of his authorship with respect to its works; and to order the publication as an anonymous or pseudonymous work (right of paternity) The right of paternity is the author s right to assert that he/she is the creator of a work. The paternity right allows an author to place his/her name on a sculpture, print, drawing, computer program, etc. The author is the only person who has the capacity and faculty to demand that he/she must be recognized as the author of the work or, as it is common for some authors, to determine if his/her name should not be mentioned (anonymous) or if the work should be published with any other name that the author gives to itself (pseudonymous). III. To demand respect for its work, opposing any deformation, mutilation or modification, as well as to any action or attempt that causes a demerit or prejudice to the author s reputation (right of integrity) The author is the person who as the creator of the work has the faculty to demand any third person to have full respect of its work. Obviously, this respect includes the opposition to any action that may cause any damage to the work created by the author and even opposition to any action that may cause damage to his reputation. IV. To modify its work (right of paternity)

3 3 As the person who creates the work, he/she is the only person who has the faculty to make any modifications to his/her work, for example by adding or removing chapters if the work is a literary work, or to modify the structure of a sculpture or any other modifications. The author has a right to prevent any modification of a work without consent. The work must remain a true representation of the author after it has been disclosed and for that to happen any modification must be undertaken with consent. V. To withdraw its work from circulation (retirement right) It is evident that in order to exercise this moral right, the work has to be previously published. The author may decide to withdraw its own work from circulation if from his/her own perspective his/her work should be changed or requires any modifications to make it more adequate to the reality that the work is currently experiencing. For example, in Mexico Jose Vasconselos, a well-known writer, ordered the withdrawal of his original literary work Ulises Criollo from circulation to make some amendments. Then this work was re-published containing the amendments that the author made to his own work. VI. To oppose any attribution of a work that he/she did not create An author or any other person may oppose the attribution of a work if he/she is not the author of such work. This hypo carries the idea of protecting the honor and reputation of the author. This is the right of any person to affirm or deny that he/she is the author of the work. Moral rights in Mexico have the following characteristics: - Perpetual - Inalienable - Irrevocable

4 4 - Unwaivable The author is the sole, original and perpetual owner of the moral rights of its works. The authors cannot assign moral rights, by any inter vivos act, because moral rights are closely linked to the author of a work and protect the author s reputation. The justification behind perpetuity is that keeping a nation s cultural patrimony intact is a matter of public interest. The exercise of the moral rights corresponds to the author of the work or to its heirs. In the absence of heirs, or in the case of public domain works, anonymous works or in connection with the national Mexican flag, the coat of arms of Mexico, the national anthem of Mexico and the expressions of popular cultures (as established in the Mexican Federal Copyright Law), the Mexican State retains the exercise of the moral rights. In accordance with Mexican Law author s heirs will only be able to exercise the moral rights in what concerns to: i. The publication of the work, ii. The paternity of the work, iii. The integrity of the work and iv. The opposition of any attribution of a work that the author did not create and, the Mexican State will only exercise the moral rights in what concerns to: i. The integrity of the work and, ii. The opposition for those cases in which the Mexican State has been recognized as the owner of the moral rights of certain work. Under the provisions of the Federal Copyright Law in force, an artistic or literary work is protected for its sole fixation in a material medium of expression. The recognition of copyright rights shall not require registration or documentation of any kind, or be subject to compliance of any formality. The registration of a work before the Mexican Copyright Office, however, is a highly recommendable action, since through the corresponding certificate of copyright registration, evidence of existence of the work and of the ownership of the copyright over the work on behalf of the registrant is established. The practice in Mexico has demonstrated that copyright registration before the Mexican Copyright Office is an action necessary to enforce copyrights in Mexico, the certificate of registration over a work constitutes one of the main documents supporting enforcement actions against a copyright infringement and is usually requested by the Mexican Institute of Industrial Property and the Federal Prosecutor s Office (depending on whether the action is of an administrative or criminal law nature), when an action is brought against a copyright infringer. Concerning enforceability of moral rights in Mexico, there are different actions that the author or the holder of the moral rights (supra page 4 paragraph 2) either in the administrative or judicial fields can be exercised. A brief description of the applicable actions will follow in the next paragraphs: A) Administrative actions In the administrative field, any infringement or violation of the moral rights, may constitute a copyright infringement. These actions are administered exclusively by the Mexican Copyright Office, which is the competent authority in this matter.

5 5 Moral right s violations are established under sections IX and X of article 229 of the Federal Copyright Law and they expressly refer to the conducts consisting of: - The publication of a work by an authorized user thereof without mentioning the name of the author. This conduct violates the moral right of paternity. - The publication of a work by an authorized user thereof, causing a demerit or prejudice to the author s reputation. This conduct violates the moral right of integrity. The Federal Copyright Law establishes that this kind of infractions will be punished by the Mexican Copyright Office by a range of fines from 5,000 to 15,000 days of minimum wage applicable to Mexico City (from $274, to $822, Mexican currency). B) Judicial Actions - Administrative law actions When a person different from the author register a work before the Mexican Copyright Office, without properly recognizing its authorship or attributing the authorship to an author that did not created the work, the legitimate author has the right to exercise a judicial action before the Federal Court competent on administrative matters, focused to nullify the certificate of registration and demand the recognition of his/her authorship. The plaintiff should support the action based on documents reflecting better ownership rights or that controvert the validity of the ones used by the alleged author to claim the ownership over the work. If the court resolves that the action is grounded, it will declare the nullity of the Certificate of registration. Thereafter, the plaintiff has the right to initiate a civil action to be indemnified in monetary terms. - Criminal law actions A violation of copyrights in Mexico can constitute a federal crime according to the provisions of Title twenty sixth of the Federal Criminal Code. Although most of the conducts foreseen in this code refers to aspects around violations of copyrights when they have an impact in economic or commercial activities, there is an specific provision in Article 427 protecting moral rights. The mentioned article punishes with a fine of 300 to 3,000 days of minimum wave applicable to Mexico City ($16,440 to $164,400 Mexican currency) and imprisonment of six months to six years the conduct consisting in the publication of a work by replacing the name of the original author by another, knowing that authorship do not correspond to the designated author. Through the mentioned proceedings it is shown that effective protection of moral rights in Mexico can be achieved. At the present date if we could apply the protection over moral rights back in time and if we could imagine the Rockefeller center located not in New York City but in a piece of land located, perhaps, in front of the Mexico City s Independence Angel, we would dare to affirm that the original Rivera s mural Man at the Crossroads would have preserved the original communist images painted by the author.