On May 4th, the most important copyright law reform of the last 40 years was introduced in Chile. This initiative, which was promoted by the government of Michelle Bachelet, will modernize the existing regulation, including several international obligations. Another of its aims is to solve an ongoing historical problem: to have a law that appropriately balances the genuine interests of authors, owners and all citizens in general.
Previously, the 1970 law, and each of its subsequent amendments, only took into consideration the interests of the copyright owners, by establishing new rights for them and almost completely ignoring the interests of the users and consumers of copyrighted works. This approach was reinforced by the free trade agreements that were signed in recent years, resulting in the need to reform our system to improve and strengthen the enforcement of copyright.
Thus, for the first time in history, besides creating more mechanisms for combating piracy and promoting respect towards copyright, the law now provides an appropriate list of exceptions and limitations to those rights, which are the subject of this article.
The reforms were designed by taking into account the diversity of the actors and interests that are involved, and were discussed at length in Congress for over three years. The law received important support from organizations that represent the users and consumers, but was also subject to strong criticisms, mainly from particular sectors of national representatives of creators and international creative industries. Although these groups value the improvements in the enforcement systems, they strongly protested against the strengthening of the catalog of exceptions and limitations.
This discussion led to a series of actions led by citizens who expressed their views during the legislative debate, transforming it from a subject that was mainly relevant to certain authors and creative industries, into an issue of concern for the general public, whose voices have been heard through various channels, including social networking websites such as Facebook and Twitter.
Summary of changes
In the interest of a more efficient and effective protection of the rights of authors and creative industries, the law has increased civil and criminal penalties in cases of infringement, it has improved judicial procedures, and established a simplified system of financial compensation, thus fulfilling an old desire of the rights holders. In a similar sense, by implementing the obligations assumed in the Free Trade Agreement signed by Chile and the United States, the law has adopted a system of limiting the liability of Internet service providers, including a simplified judicial procedure for the removal and blocking of illegal content on the Internet, through an expeditious court order. The Congress rejected any provisions that did not include the intervention of a judge, as it could seriously affect a number of rights and freedoms that are granted by the Constitution.
To meet the objective of balancing the legislation in force, the law has established a set of measures, traditionally called exceptions to copyright that shall guarantee the public legal access to protected works in each of the hypotheses set forth. The new catalog of exceptions was designed by taking into account the rich international experience and principles contained within various multilateral international treaties of the World Intellectual Property Organization and the World Trade Organization.
With this public policy decision, Chile will have an appropriate list of cases that do not require authorization or payment to the holder of the rights to legally use the work, among which we highlight the following:
- The right of quotation: the law has expanded the scope of the existing exception, traditionally limited to the reproduction of excerpts in cultural, scientific or didactic works, which will allow for the inclusion of short excerpts of protected works, as a quotation; or for criticism, illustration, teaching and research;
- Access for people with disabilities: a broad exception has been included to allow for the reproduction, adaptation, distribution or public communication of a work for the benefit of the visually impaired, the hearing handicapped or any other type of disability that prevents normal access to a work. In this way, the law corrects a historical failure of the previous legislation and constitutes a significant advance in the exercise of the right to social inclusion for this important segment of the population;
- Nonprofit libraries and archives: A set of exceptions has been added that benefits the work of these fundamental entities in the transmission and preservation of cultural and scientific heritage of the country. Among the authorized cases are: i) reproduction of works that are not available in the market (out of market exception); ii) reproduction for conservation purposes in case of loss, damage or destruction of an original work; iii) partial reproduction of works for private use of users of those institutions; iv) electronic reproduction for use in room; and, v) translation of the complete works for use in the library or archives; among others;
- Educational purposes: The reproduction and translation of small fragments of works for educational purposes of different nature for illustrating educational activities was authorized, as well as the performance and public communication of works in such establishments;
- Computer programs. By considering experiences at international level, surpassing the need for incentives and facilitating the development of local technologies, the law settled exceptions for computer programs. The first of these exceptions authorizes reverse engineering activities to achieve interoperability between programs, or for research and development. The second endorses the adaptation or copying of a program when it is essential for its use or support. Finally, computer program activities that are aimed towards the purpose of testing, investigating, or enhancing performance or safety were also authorized;
- Temporal copies. While recognizing the rights of the holders for the temporary reproduction of their works, temporary reproductions are expressly authorized when necessary for transmission or fair uses. Therefore, multiple temporary copies of a work that are needed to transmit content via Internet or satellite will be covered by this exception.
- Satire or parody: Satire and artistic parody are protected, as long as they are distinct from the original work, performance or characterization.
- Private use: The law allows communication or public performance of a work within families and the translation of a work for personal use.
- Administrative Use: Incorporating the flexibilities provided by the Berne Convention, the law authorizes the reproduction and public communication of a work for purposes of conducting judicial, administrative, and legislative proceedings.
- Fair Use: A significant development was the inclusion of a broad exception that allows incidental uses of copyrighted works for purposes of criticism, commentary, caricature, teaching, academic interest or research. Building upon these provisions, we hope to set a framework of flexibilities that is in line with technological progress and sets the path that should be followed in issues of copyright.
As can be seen, the result obtained after intense legislative discussions is positive. The Congress understood the issue at hand, further developing the premise that the government of Chile had at the time: copyright is not only built from the rights of the creators and owners of works, it must also consider the right of access and free use for the public.
This dynamic concept of copyright allows, for example, new artistic and cultural creations to take place countless times. Existing works serve as an inspiration or the basis for the development of new works. Mickey Mouse is an example of this, as well as the techniques of collage used in visual arts, match-ups and remixes in music, which makes this a quality of the human creative process that is essential to preserve and promote. Furthermore, important technological developments in software are possible by authorizing the study and use of source codes through reverse engineering techniques that lead to the improvement and development of solutions. Similarly, this concept facilitates obvious and necessary uses such as transferring books into audio formats that can be used by people with visual impairments. For these and other uses, exceptions and limitations are essential. But this is only a step.
In the international arena it is clearly visible that the level of protection of copyright is becoming increasingly homogeneous as a result of signing international multilateral, regional and bilateral agreements that have diluted the traditional differences between the provisions of Common Law copyright and Continental or Civil Law “droit d’auteur”. Thus, we have harmonized the terms of protection and measures such as limiting the liability of Internet service providers, among others. Therefore, it is now necessary to apply similar measures for the national and international rules on exceptions and limitations to copyright, recognizing the impact of protection systems in the field of human rights.
Fair use standards
Today it is essential to incorporate -in local legislation and international instruments – more flexible exceptions, as the so-called fair use exceptions, typical of the Common Law system, which allows the court to determine many different hypotheses without a detailed catalog.
The bill originally introduced by the Government of Chile included an exception of this kind, which gave judges the role of defining new exceptions, a provision that after a heated debate and negotiation in Congress became a “seed” of fair use in the terms described above. On countless occasions throughout the discussion, the representatives of right holders expressed their strong opposition to its inclusion, arguing that in a Continental law system like Chile’s, a provision of this nature was not viable and resulted in the lack of protection of the rights of whom they represent.
We believe it is possible and desirable that developing countries have fair use exceptions. Our regulatory systems can give this power to a judge, generating a dynamic regulatory framework that can keep up with society and technological changes. Moreover, such provisions are not unknown to our system. The obligation to grant a patent license, defined by a judge based on certain criteria, is an example of this. It must be added that Chile and other countries have incorporated other provisions of Common Law copyright into their domestic law without legal or practical problems. Finally, a shallow review of the comparative situation in this area reveals that those who have more robust systems of exceptions, including fair use, are undoubtedly the more developed countries. This scenario does not fit with the necessary flexibilities that less advantaged countries need for achieving a minimum, equitable form of development.
Exceptions, mainly fair uses, are essential for learning and stimulating the creative process and evolution of science and mankind’s arts. We hope that after years of work, this important step forward will allow other countries to benefit from our experience and improve overall legal formulas to protect the rights of creators, owners and users, in a balanced manner.
Marcela Paiva Veliz. Lawyer. Former Legislative Advisor of the National Council for Culture and the Arts. Currently, Legal Advisor of the Intellectual Property Department, General Directorate of International Economic Affairs, Ministry of Foreign Affairs of the Government of Chile.