Commons:Copyright rules by territory/Andean Community

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This page provides an overview of copyright rules of the Andean Community relevant to uploading works into Wikimedia Commons. Note that any work originating in the Andean Community must be in the public domain, or available under a free license, in both the country of origin and the United States before it can be uploaded to Wikimedia Commons. If there is any doubt about the copyright status of a work from the Andean Community, refer to the relevant Andean and domestic laws for clarification.

Background

The Andean Community (AC) is a customs union comprising the South American countries of Bolivia, Colombia, Ecuador and Peru. The trade bloc was called the Andean Pact until 1996 and came into existence when the Cartagena Agreement was signed in 1969.[1] In 1993 the members of the Andean Community adopted Decision 351, which defined common rules for copyright and neighboring rights.[1][2] In 1994, the Community signed the TRIPS agreement for its inclusion to World Trade Organization.[3] Additional rules for industrial design were established in 2000 in Decision 486.[4]

At this time all members had adopted the Berne Convention and the Universal Copyright Convention However, various factors have delayed further convergence on common copyright rules, a prerequisite to integration of the information economies.[1]

Nuevos criterios jurisprudenciales del Tribunal de Justicia de la Comunidad Andina, a book relevant for copyright cases and related to the changes in Decision 351 is released in 2019, available on AC official website.[5]

General rules

Decision 351 rules have immediate and binding effect, overriding domestic laws.[1] They include:

  • Each member country gives the nationals of other countries protection no less favorable than that accorded to its own nationals.[1993 Article 2]
  • The author shall have the inalienable, unattachable, imprescriptible and unrenounceable moral rights.[1993 Article 11]
  • The term of protection of the rights is not less than the life of the author and 50 years after their death.[1993 Article 18]
  • Where the ownership of the rights accrues to a legal entity, the term of protection is not less than 50 years from the making, disclosure or publication of the work, as the case may be.[1993 Article 18]

The term of protection shall be counted from 1 January of the year following that of the death of the author or that of the making, disclosure or publication of the work, as appropriate.[1993 Article 20] Unlike moral rights, economic rights are subject to can be expropriated, waived or seized and are not perpetual (according to the presentation of the Peruvian lawyer and AC magistrate representing to this country Gómez Apac).[5]

Decision 351 also defined rules that would take effect where consistent with the domestic laws of the AC members, including provisions on works-for-hire, droit de suite, computing terms of protection, transferring and licensing, and affiliation to collective rights management societies.[1]

Retroactivity

There is a controversy about the retroactivity of the protection of works that are in the public domain due to registration formalities before the entry into force of Decision 351 or the extension period for expired works in other countries. However, derivative works remain under the "public domain" and the status of maintain them is decision of each country in its laws.[3] File 607-IP-2018 (also quoted in file 2-IP-88, from C-09/19, which explains the inconsistencies between the Colombian Constitution and copyright for Andean law) indicates that domestic laws that contradict existing AC decisions will not be repealed within national jurisdiction. However, in other cases, if the work is imported from other countries, the superior laws previously mentioned will be considered for community court (principle of preeminence). Exemptions exist for certain laws that interpret the decisions of the Andean Community in a prejudicial manner for the country that has not yet been normalized.[6]

This could occur in the following cases, only for countries subscribed in that year:

  • If the work expired before 1994 in its country of origin, the work into to the public domain in the Andean Community and United States except if the domestic law had a longer protection in URAA date or applies retroactivity. There are retroactivity for databases and software source code as literary works for domestic laws that do not mention as such.[1993 Article 60] However, some creations like simple photographs or works of anonymous authors are not subject to protection for Decision 351, so they safely enter the public domain under Andean laws if their protection under the domestic laws has expired.
  • If the work expired between 1994 and the updating of the domestic law in its country of origin, the protection extends to another countries. So, if the domestic law extinguishes its copyright term after 1994 (see Article 21), other countries will prevail its term under Andean Community protection, when its author is attributed as individual or organizational.[1993 Article 59] Anonymous works do not have this possibility.
  • Unregistered pre-1994 published works shall be subject to Decision 351.[1993 Article 60] For works acquired before into force of the new AC rules will maintain their status, but heirs of their author who died after 1944 will be able to exploit their derivative works created after the Andean Community rules came into force. The same applies to organizational works created since 1944.[3] This does not usually affect the United States, if domestic law keeps the work in the public domain prior to domestic extension and URAA date.
  • If the work was created or published since 1994, or the date on which the country is considered as a future Andean Community member, it is subject to the rules of the Andean Community. Also, there is the possibility of extending the term from domestic laws in its country of origin.

Applied works

Decision 486 rules add protection to the applied works.[4]

  • Industrial design and utility models are considered applied arts, the term of protection is 10 years from the request in the member country.[2000 Article 84 and 128]
  • Integrated circuits is considered as an applied art, the term of protection is 10 years from the request in the member country or 15 years before creation.[2000 Article 86 and 97]
  • The following are not considered as applied art: mathematical methods, literary and artistic works, computer programs and methods of intellectual activities.[2000 Article 15]
  • File 317-IP-2019 determines the limits to obtain an intellectual property in applied works, a real example was the originality that would receive a bottle with some aspects that were determined to be part of an artistic work.[7]

De minimis

Shortcut

See also: Commons:De minimis

  • "The limitations and exceptions to copyright established in the domestic legislation will be circumscribed to cases which do not conflict with the normal exploitation of the works nor resulting unjustified prejudice to legitimate interests of the owner or owners of the rights".[1993 Article 21]
  • File 139-IP-2003 establishes as "subtly plagiarized work" ("obra maquillada") for intentions to transform or partially reproduce the work from other work with the purpose of exploiting it.[8]
  • File 248-IP-2014 defines that to approximate "de minimis" the copyrighted work must fit the concept of "accessory". In other words, it should not be the focus of contained work for avoid plagiarism charges.

Not protected

See also: Commons:Unprotected works

  • The ideas contained in literary and artistic works, the ideological or technical content of scientific works, and their industrial or commercial exploitation are not subject to protection.[1993 Article 7]

Freedom of panorama

See also: Commons:Freedom of panorama

OOjs UI icon check-constructive.svg OK Decision 351 of the Andean Community of Nations provides for Freedom of panorama as follows:

  • "Article 22.- Without prejudice to that put forth in the Chapter 5 and in the previous article, it will be legal to realize, without authorization from the author and without the payment of any remuneration, the following acts:...h) undertake the reproduction, transmission by broadcasting or cable distribution to the public of the image of an architectural work, work of fine art, photographic work or work of applied art located permanently in a place open to the public".[1993 Article 22(h)]
  • File 044-IP-2013 is an example of the commercial use of a property broadcast in a mass media, requiring explicit mention of its author and its publication is for "good commercial practice" (quoted as "buena fe comercial"). Otherwise, as its unlawful appropriation, this is considered as lucrative exploitation.

Threshold of originality

See also: Commons:Threshold of originality

The Andean Court established in files about Threshold of originality based on the representation or subjectivity of their author's elements, as follows:

  • 295-IP-2019: "The protection of a copyright does not depend on the merit of the work or its purpose, nor on the complexity of the intellectual work or the production process, it depends on whether it possesses elements that demonstrate a sensible difference from its author, that individualizes their representativeness or subjectivity".[8]
  • 10-IP-1999: "Originality in compilations or databases does not consist in the 'expression' of the works or other elements collected, but in the 'selection' or 'arrangement' of the subject matter of the compilation".[9]
  • 248-IP-2015: This file establishes the criteria for industrial design based on distinctive features such as the "convergence of lines, combination of colors and external shapes in two or three dimensions" to obtain an "aesthetic purpose". This criteria applies only to utilitarian objects. Also quoted in file 392-IP-2017.
  • 358-IP-2017: "Originality implies that a work can be differentiated from other works of others. In their creation the author has imprinted elements of their own spirit. Two works may be considered original if one is not a reproduction of the other, and if each has elements that differentiate or individualize them".[5]
  • 713-IP-2018: "If the editorial design is the mere execution of the express and direct instructions, orders or directives of their contractor [...] it is difficult to affirm that the editorial design is an original work of their contractor". In this case it can only be protected if there is a creative process.
  • 121-IP-2013: "[In the works] the intellectual, artistic, technical, technological or scientific merit or height shall not be taken into account. [...] The same happens if a drawing or painting is made with a lack of plastic technique; originality is not granted by the artistic quality or the adequate use of the technique, it is obtained by being a reflection of the spirit of that human being who captured the strokes on the canvas or paper. This criterion is applied in architectural works cited in this IP.

For photographic and audiovisual works:

  • 143-IP-2017: "A simple photograph that does not meet the requirement of originality cannot be considered a photographic work and is consequently not protected by copyright". An example of simple photographs is a simple portrait or taken in automatic booths.[10]
  • 531-IP-2019: In the case of audiovisual creations, the originality of a work established for cinematography and its analogs with or without sound from collaborations of artists and utility personnel. In addition, artistic contributions may be exploited separately, subject to prior agreement with the production company. But videorecording, for example, does not constitute an audiovisual work and does not have full protection of economic rights.[11]
  • 371-IP-2017: This file establishes a particular case for related rights in broadcasting and production from non-individual multimedia works, "while related rights are not strictly considered artistic, literary or scientific creations, they contain sufficient creativity, technical dimension and disposition to qualify for the granting of an intellectual property right".[5][8]

Examples:

  • The Saturn logo, created and copyrighted in US (VAU586282), is below TOO in AC countries. Per 177-IP-2016 point 6.1 and Casación 1592 by Tribunal of Justice of Peru.

See also

Citations

  1. a b c d e Cerda Silva, Alberto J. (2012) Copyright Convergence if the Andean Community of Nations[1], Intellectual Property Law Section of the State Bar of Texas
  2. Andean Community (17 December 1993) Decision 351—Common Provisions on Copyright and Neighboring Rights[2]
  3. a b c Cerda Silva, Alberto J. (2011) Armonización de los derechos de autor en la Comunidad Andina: Hacia un nuevo régimen común[3] (in spanish), Universidad de Talca
  4. a b Andean Community (14 September 2000) Decision 486—Common Provisions on Industrial Property[4]
  5. a b c d Gómez Apac, Hugo R.; Rodríguez Noblejas, Karla Margot (2019), Universidad San Gregorio de Portoviejo, editor, Nuevos criterios jurisprudenciales del Tribunal de Justicia de la Comunidad Andina (Junio 2016 – Junio 2019). Propiedad intelectual, libre competencia, comercio internacional, derecho tributario, telecomunicaciones, transporte y minería ilegal[5] (pdf, in spanish), first edition, Quito: Editorial San Gregorio S.A., ISBN 978-9942-795-13-7, archived from the original on 2021-07-24, pages 31-308, Propiedad Intelectual
  6. Andean Community (11 December 2018) Interpretación Perjudicial: Proceso 607-IP-2018[6]
  7. Andean Community (23 June 2021) Interpretación Perjudicial: Proceso 317-IP-2019[7]
  8. a b c Solines Moreno, Pablo (2020) Sentencias relevantes de la Comunidad Andina en materia de derechos de autor y afines[8] (in spanish), Instituto Autor
  9. Gaceta 468[9] (in spanish), Comunidad Andina, 1998
  10. Andean Community (23 June 2018) Interpretación Perjudicial: Proceso 143-IP-2017[10]
  11. Proceso 531-IP⁻2019[11] (in spanish), Comunidad Andina, 2019
Caution: The above description may be inaccurate, incomplete and/or out of date, so must be treated with caution. Before you upload a file to Wikimedia Commons you should ensure it may be used freely. See also: Commons:General disclaimer