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Mexico: Internet Copyright

By Luis C. Schmidt
Partner
Computer und Recht International, February 2001

The Internet raises the most challenging and interesting questions and issues in copyright law. Although principles, including those resulting from the Berne Convention, remained the same, countries have been calling for new rules asserting copyright rights on the Internet, as well as legal remedies for solving disputes produced by conflicting interests of titleholders, on the one hand, and intermediaries and users of the web seeking access to information, on the other.
As of May 18, 2000, Mexico deposited the instruments of accession to the WCT and had earlier done so for WPPT. WCT is actually pending at Congress while WPPT was approved on March 1, 2000. As a matter of fact, the Mexican Law of 1996, which was adopted prior to the conclusion of the Diplomatic Conference held at WIPO's headquarters in December 1996, had already introduced certain of the provisions that would later become the standards of the treaties.
Accordingly, the Mexican Law of 1996 inserted a »making available« right, as a legal tool to cope with the issues triggered by the use of works of authorship in a digital environment. Likewise, the statute recognized a »transmission« right, independent from the more traditional notion of public performance, and in fact, from the more general concept of »communication to public«, as regarded by Article 8 of the WCT.
Regarding technical protection systems, a rule was included aiming to protect the circumvention of codification mechanisms in computer programs. The rule in Mexican law has nonetheless a narrower scope than what later became articles 11 and 12 of the WCT. These are not restricted to software only, but are rather designed as a general norm imposing upon the »contracting parties« the obligation to »provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restricts acts in respect of their works, which are not authorized by the authors concerned or permitted by the law« (emphasis added).
Finally, the Mexican statute adopted a notion of »reproduction«, which includes the temporary or ephemeral copying of protected works. In 1996 the Mexican legislator did not anticipate that the Diplomatic Conference of Geneva would finally drop the drafted provision of a »reproduction« right in the WCT because the idea of »ephemeral reproduction« would have imposed too high a burden on Internet service providers. Mexican law indeed ruled on the ephemeral copying of works as a form of reproduction, and will now, for the sake of a proper balancing of equities, face the need to introduce a system where limitations to copyrights and safe harbor provisions counteract the controlling rights of copyright owners.