After several comings and goings, Law 17,616 of January 10, 2003 was promulgated, the product of innumerable vicissitudes, alternatives and why not pressure both internally and internationally. Technically, the new law introduces modifications to Law 9,739 of December 17, 1937 on Literary and Artistic Property. The new legal regulations represent an extremely important step in the protection of authors and holders of related rights, as it reflects current trends in the matter worldwide. The phenomenon of globalization has a substantial impact on what has to do with these rights due to the international projection of intellectual works, in all its forms,which determines that legal regulation both inside and outside borders tends towards the unification of measures and levels of protection, prevention and repression of illegal practices which generate a series of seriously damaging effects.

From an economic point of view, it should be noted that cultural industries constitute an important source of employment and wealth creation, which by way of example and locally represents 3% of Uruguay's GDP.

As a large part of the doctrine on the matter, Law 17,616 ends with the legislative debt of our country with respect to the international commitments assumed by approving by law 16,671 of December 13, 1994 the “Agreement on Aspects of Intellectual Property Rights related to Commerce ”and by Decree-Law 14,587 of October 21, 1976, the“ Rome Convention ”of October 26 and 1961 on the protection of artists, performers, producers of phonograms and broadcasting organizations.

On the other hand, Decree-Law 14,910 approved the "Berne Convention" for the protection of literary and artistic works.

Also at the international level, the treaties of the “World Organization for

Intellectual Property ”(WIPO) of 1996 on Copyright (WTC) and on Interpretation or Performance of Phonograms (WPPT), treaties which have been an important source of inspiration for many of the provisions contained in the new law.

Legal nature of copyright

Although this point has been the subject of controversy and discussions at the doctrinal level, it cannot be ignored that the will effectively incorporated into the norm has been that copyright is complex in nature, that is, it is made up of two rights: moral law and economic or economic law.

The former, also called very personal rights, are not defined by the legislator, but the latter merely lists their different facets, a circumstance that allows for greater freedom of interpretation in their respect.

Characterized by being a very personal right, in principle, and from the legal point of view, it would be an inalienable right. The moral right includes the author's personal powers. Another of its characteristics is that of being an inalienable and perpetual right. Law 9,739 in its art. 11 recognizes this inalienability since, in the matter of acquirers, it establishes that the personal rights of the author are not transmitted to them. From the aforementioned norm it is clear that in our legal regime it consecrates the intrasmissibility of the moral right for an act inter vivos; not happening the same with respect to the transmission mortis causa since as it arises from art. 16 of the law recognizes certain rights to the heirs.

Moral law is made up of a series of faculties classified into three categories that correspond to arts. 11, 12 and 13 of Law 9,739, namely:

1. the author to publish an unpublished work, to reproduce an already published one or to deliver the contracted work not susceptible of forced execution. whatever the terms of the contract of assignment or transfer of rights, the author will have on his work, as be: require the mention of its name or pseudonym and the title of the work in all the publications, performances, performances, broadcasts, etc., that are made of it, as well as monitor the performances, performances, reproductions or translations of the same and to correct or modify the alienated work as long as it does not alter its character or purpose and does not prejudice the right of third-party purchasers in good faith.publishers or printers interested (power that the law is responsible for highlighting its personal and non-transferable nature).

Regarding economic or economic rights, it has been maintained by the doctrine that the legal regime applicable to these would be that of Property, so that all provisions referring to common Property would apply, except as expressly provided by special law.. Consequently, above all, silence of the norm should be interpreted in accordance with the rules of common law.

The position of Valdés Otero is against this doctrine, who considers any analogical extension absurd because he considers the correlation between the right of property and copyright to be non-existent. As an example, he points out that the provisions regarding possession and the right of possession of the Civil Code are difficult to apply in the field of copyright.

The art. 2 of Law 17,616 lists the content of each of the powers included in the intellectual property right (exclusive powers of the author to alienate, reproduce, distribute, publish, translate, adapt, transform, communicate or make the works available to the public protected by law, in any form or procedure).

Furthermore, the transfer of these rights is authorized by art. 8 of Law 9,739, establishing that the ways in which said rights will be transmitted will be all those provided by law, requiring that the contract, to be valid, must necessarily be in writing, and must be registered in the respective Registry in order to be opposed to third parties.

The new law 17,616, in its article 6, establishes and regulates the “right of participation”, by means of which the inalienable and inalienable right of participation is reserved in favor of the author, his heirs or legatees on the occasion of the resale of the works of plastic or sculptural art and for which they must receive from the seller 3% of the resale price.

On the other hand, it should be noted that copyright rights are exclusive, that is, only the author or his heirs can authorize the use of the works. As arises from the aforementioned art. 2 of the new law, the right of reproduction of the work is extended by recognizing as such the permanent or temporary electronic storage of the works that enables their perception or communication, limiting said right in art. 12 lit. C of the law, insofar as it allows broadcasting organizations, without authorization from the author or payment of any special remuneration, to make ephemeral recordings with their own equipment and for one-time use in their own broadcasts,of a work on which he has the right to broadcast and keep it in official archives if it is of an exceptional documentary nature.

With respect to the right of distribution, the aforementioned rule provides that it includes making available to the public the original or one or more copies of the work or production, through sale, exchange or other form of transfer of ownership, lease, loan, import, export or any other known or to be known way that implies the exploitation of the same.

Regarding the right of public communication, the enumeration of forms of communication is carried out in very general terms so as to encompass the future advances that technology will surely provide.

The innovation regarding the form of communication lies in the inclusion of the works available to the public, so that the members of said public can access them from the place and at the time they choose, making a clear allusion to the network of networks (Internet), thus broadening the traditional concept of public as that group of people gathered in a room, theater, cinema, etc. in order to witness a certain work to an audience understood in a much more global aspect, physically distant from each other (virtual audience).

Copyright holders

Law 9,739 in its art. 7 (modified in its lit. D by law 17,616) establishes clearly and in detail who are the holders of copyright in our legal system.

In the first place, as there is no doubt, we find a) the author of the work and their successors, secondly b) the collaborators, then c) the acquirers of any title, ch) the translators and those who, with due authorization, acting on existing works, adapting or modifying them, d) the interpreter or performer of a literal or musical work, on its interpretation or performance, the producer of phonograms, on its phonogram and broadcasting organizations, on its broadcasts, and in Last place we find the holder e) State.

Regarding the authors of notes, reports or journalistic works in general, the law establishes that they are understood to be transferred in full right, the copyright on all the writings (chronicles, reports, photographs, etc.) to the journalistic company.

The author retains the right of ownership over his work throughout his life, and his heirs or legatees for a term of 50 years from the deceased's death.

The law indicates that after the death of the author, the right to defend the integrity of the work will pass to his heirs and subsidiarily to the State.

If the work is not published, represented, executed or exhibited within 10 years from the moment of the author's death, it will fall into the public domain.

When the work is the result of the collaboration of several people (co-authors), the law determines that we are facing an undivided work, thus granting the co-authors equal rights, unless expressly agreed otherwise (art. 26 law 9.739 / art. 1755 Civil Code). Collaborators can publish, translate or reproduce the work with the sole condition of respecting the proportional utility corresponding to the others.

In the case of an audiovisual work, the law presumes co-authors, unless proven otherwise, to the director or director, to the author of the plot, to the author of the adaptation, to the author of the script and dialogues, to the composer if any, and to the draftsman in animated designs case

Moreover, art. 29 of the new law establishes a “iuris tantum” presumption that the authors of the audiovisual work have assigned their economic rights exclusively to the producer, who is also vested with the ownership of the right to modify or alter it, as well as authorized to decide about of its disclosure.

Authors of musical works are hereby agreed to receive remuneration on the public communication of the audiovisual work, including the public exhibition of cinematographic films, the leasing and sale of material supports, unless otherwise agreed.

Regarding the ownership of computer programs and databases, Law 17,616 adopts a practically identical solution to that established for audiovisual work, also presuming, unless otherwise agreed, the unlimited and exclusive assignment by the authors to the producer of your economic rights. Likewise, the law provides that if the work has been in the framework of an employment relationship, it is also presumed, unless otherwise agreed, that the author has authorized the employer or principal in an unlimited and exclusive way the economic rights as well as the exercise of moral rights. Regarding the purchasers of any title of a work, the law provides that the author is substituted in all his obligations and rights, except those that by their nature are of a very personal nature.Translators are the copyright holders of the translation provided it has been done with the consent of the original author. In turn, those who adapt, recast, extract or summarize an original work have the property of said works provided they have also been authorized by the author.

On the other hand, the new law introduces a specific protective regime for the holders of the so-called “related rights”, that is, artists, performers, producers of phonograms and broadcasting organizations. The rights enjoyed by these holders are intellectual in nature and are distinguished from copyright by having their own original profile. They start from the basis of a pre-existing work for interpretation, execution, phonogram, or broadcasting, and these require the author's prior authorization to become effective.

Given the close link between related rights and the work, the possible collision of interests between authors and holders of these rights has been foreseen by means of the declaration contained in art. 1 of the new law 17.616, which establishes that copyright will not be impaired by the protection granted to those who have related rights. Regarding the rights legally attributed, the law does not grant moral rights to artists, performers, and patrimonial rights are enshrined, exclusively in article 12 of law 17,616. Artists, performers and performers have the right to authorize the reproduction of their performances set on phonograms, the making available of copies to the public by transfer of ownership,commercial leasing of copies, making available to the public of performances and / or performances set in phonograms by wire or wireless means, so that members of the public have access to them at the time and place of their choice, broadcasting and communication to the public of their unfixed performances, except when the performance itself constitutes a broadcast performance, and the fixation of their unfixed performances.the broadcasting and communication to the public of their unfixed performances, except when the performance itself constitutes a broadcast performance, and the fixation of their unscheduled performances.the broadcasting and communication to the public of their unfixed performances, except when the performance itself constitutes a broadcast performance, and the fixation of their unscheduled performances.

Producers of phonograms have the right to reproduce their phonograms, make the original and copies available to the public for sale, commercial leasing, wire or wireless means.

Broadcasting organizations have the right to authorize exclusively the retransmission of their broadcasts, the making available to the public of their broadcasts, the fixation on any sound or audiovisual medium of their broadcasts and the reproduction of their broadcasts. They shall also have the right to obtain an equitable remuneration for public communication of their broadcasts or broadcasts when it is carried out in places to which the public has access by paying an admission or entry fee.

On the other hand, the law determines that the recording, by a broadcasting organization, without the author's authorization, with its own equipment and for the use for a single time in its own broadcasts of a work on the broadcasting, is lawful. which has the right to broadcast.

In another order of things, art. 12 of the new law in its lit. D provides that artists, performers, and producers of phonograms enjoy the right to fair and equal remuneration for the direct or indirect use, for broadcasting or for any communication to the public, of phonograms published for commercial purposes. A non-voluntary license is legally established by which these right holders cannot prevent or oppose the use of the phonograms in the manner described above, and that the doctrine calls “secondary uses”, but in return they are guaranteed adequate remuneration which will be determined applying the principle of equity.

Finally, we have to briefly analyze the situation in which the State and people under public law find themselves as possible holders of rights.

In the first place and by legal provision, the State, the Municipality and persons under public law shall be the holders of copyright when they acquire the property of one of the works protected by law. The State or Municipality has the power to expropriate copyright with some reservations in this regard, since the law determines that the expropriation will be individual in the first place, for each work, and for reasons of public interest, and secondly, it provides that no the right to publish or disseminate the author's lifetime work may be expropriated.

Object of legal protection

The art. 3 of Law 17,616, substitute for art. 5 of Law 9,739 establishes the principle established in international treaties as well as in comparative law, from the aforementioned article it is extracted that copyright protects the expression or way in which ideas are expressed. The ideas themselves are not protected but the ways by which they are externalized and materialized. This by virtue of the fact that it is in the expression of the idea that the originality and individuality of the work lies, from which the personality of its author ultimately emerges.

Copyright protects the work, but like any expression requires a certain material exteriorization in a corporeal good. For this reason, it is essential to distinguish the work as an incorporeal good from the support that contains it, whose nature will be essentially bodily. In this sense the art. 4 of the new law declares the independence of the rights recognized by the author's law on the work of those that arise from the ownership of the material support that contains them, in such a way that its owner is not authorized to exercise any of the rights that correspond to the author of the work contained in it. The actual protection of copyright encompasses a series of manifestations listed by law, namely: musical compositions, with or without printed words or on discs, cylinders,wires or films and following any procedure of printing, recording or perforation, or any other means of production or execution…., brochures, photographs, illustrations, books, professional consultations and forensic writings, plays, with or without music, relative plastic works to science or teaching, audiovisual works, drawing works and manual works, documents or scientific works, works of architecture, painting, sculpture, formulas of the exact, physical or natural sciences, broadcast and televised works, texts and devices of teaching, engravings, lithography, choreography, original titles of literary, theatrical or musical works, pantomimes, literary pseudonyms, …….. “and, finally, all production in the domain of intelligence”.or any other means of production or execution…., brochures, photographs, illustrations, books, professional consultations and forensic writings, theatrical works, with or without music, plastic works related to science or teaching, audiovisual works, drawing works and manual works, documents or scientific works, works of architecture, painting, sculpture, formulas of the exact, physical or natural sciences, broadcast and televised works, texts and teaching aids, engravings, lithography, choreography, original titles of literary works, theatrical or musical, pantomimes, literary pseudonyms,…… "and, finally, all production in the domain of intelligence."or any other means of production or execution…., brochures, photographs, illustrations, books, professional consultations and forensic writings, theatrical works, with or without music, plastic works related to science or teaching, audiovisual works, drawing works and manual works, documents or scientific works, works of architecture, painting, sculpture, formulas of the exact, physical or natural sciences, broadcast and televised works, texts and teaching aids, engravings, lithography, choreography, original titles of literary works, theatrical or musical, pantomimes, literary pseudonyms,…… "and, finally, all production in the domain of intelligence."with or without music, plastic works related to science or teaching, audiovisual works, drawing works and manual works, scientific documents or works, works of architecture, painting, sculpture, formulas of the exact, physical or natural sciences, broadcast and televised works, texts and teaching aids, engravings, lithography, choreography, original titles of literary, theatrical or musical works, pantomimes, literary pseudonyms,…… "and, finally, all production in the domain of intelligence".with or without music, plastic works related to science or teaching, audiovisual works, drawing works and manual works, scientific documents or works, works of architecture, painting, sculpture, formulas of the exact, physical or natural sciences, broadcast and televised works, texts and teaching aids, engravings, lithography, choreography, original titles of literary, theatrical or musical works, pantomimes, literary pseudonyms,…… "and, finally, all production in the domain of intelligence".texts and teaching apparatus, engravings, lithography, choreography, original titles of literary, theatrical or musical works, pantomimes, literary pseudonyms,…… "and, finally, all production in the domain of intelligence".texts and teaching apparatus, engravings, lithography, choreography, original titles of literary, theatrical or musical works, pantomimes, literary pseudonyms,…… "and, finally, all production in the domain of intelligence".

But, the transcendental innovation, which arises from the penultimate subsection of art. 3 of the new law 17.616, is the inclusion in the express text of the "Computer Programs" and the "data compilations", thus consecrating their character definitively, given that they constitute an original creation of character intellectual.

The legal norm also indicates that the protected computer programs are the "source programs" and the "object programs" since both have creative elements that may be appropriated and illicitly reproduced. The compilations, databases or other materials are works provided that by the selection or arrangement of their contents they constitute intellectual creations.

The works are protected by copyright from the moment of their creation without requiring any formality. It is understood that, unlike trademarks, which need to be registered for ownership to arise, works exist from the moment of their creation even though they have not been fixed on a material medium as long as they are susceptible of being disclosed by any means. or remain unpublished.

The registration of works in the new law 17,616 is optional and its purpose is merely a declaration of rights with respect to third parties.

Duration of the economic rights

In law 9,739 the patrimonial right was extended throughout the author's life and for 40 years from his death. The art. 7 of the new law 17.616 raises this term to 50 years, which begin to run from January 1 of the year following the death of the author, or in his case, to the completion, disclosure or duly authorized publication..

For artists, performers, producers of phonograms and broadcasting organizations, the term of 50 years is calculated from the 1st of January of the year following that of, respectively, the publication of the phonogram or recorded performances, the performance of the performance in case the performance has not been recorded and the broadcast.

A transitional provision is also incorporated in the case of works and related rights that by virtue of the repealed regulations have fallen into the public domain without the aforementioned period of fifty years having elapsed in their respect. In this case, the works return to the private domain and the years spent in the public domain are not discounted from that period. All without prejudice to the rights acquired by third parties in the meantime.

Crimes

The political-legislative evolution of the homeland in the matter of study has followed a totally opposite path to that which has been taking place in the criminal sphere worldwide in favor of the decriminalization of conduct instead of creating and typifying new criminal figures.

In the current historical moment where technology never ceases to amaze us day after day, where geographical distances are getting closer, the production of material supports for works has led to the flourishing and explosion to levels never seen before of piracy generating serious damages resulting from the evasion of copyright and related neighboring rights, which has led to the need to create new types of crime, sanctioning the respective unlawful conduct with penalties analogous to those established for crimes against property.

The art. 44 of Law 9,739 specifically determines cases of unlawful reproduction of: a) literary works in general, b) theatrical, musical, poetic or cinematographic works, c) sculptures, paintings, engravings and other artistic, scientific or technical works, d) adaptations, arrangements and imitations that involve a disguised reproduction of the original.

The current art. 46 of the law punishes the violation of the patrimonial and moral rights of authors and holders of related rights for profit or causing unjustified damage. The aforementioned norm establishes that whoever publishes, sells, reproduces or causes to be reproduced by any means, distributes, stores for the purpose of distributing to the public, or makes available to the public in any way, for profit or to cause unjustified harm, an unpublished or published work, a performance, a phonogram or broadcast, without the authorization of their respective owners or successors in title, will be punished with a penalty ranging from 3 months in prison to 3 years in prison.

Whoever manufactures, imports, sells, leases or puts into circulation, devices or products, the components or tools thereof, with the purpose of circumventing or deactivating the technical devices that the holders have arranged to protect their respective ones will be punished with the same penalty. rights.

In the conviction, the court will order the confiscation and destruction of copies of works or productions as well as of the articles, devices or equipment used in their manufacture. On the other hand, the law establishes that when the equipment used for the commission of crimes is not solely for this activity, the Judge will substitute the destruction for the delivery of said equipment to official educational institutions.

Whoever alters or suppresses, without authorization of the holder of the legally protected rights, the electronic information placed by the holders of the copyright or related rights, to enable the management of their moral or patrimonial rights, so that said rights may be damaged, punished with 3 months in prison to 3 years in prison.

Finally, whoever reproduces or causes to be reproduced, without profit or causing unjustified damage, a work, performance, phonogram or broadcast, without the written authorization of its respective owner, will be punished with a fine ranging from 10 to 1500 UR.

Legal measures and actions

The art. 16 of the new law 17.616 grants the holders of the protected rights the possibility of requesting a judicial inspection (as a preparatory measure) and the Judge of declaring it without notice from the counterpart, being able to order the search in order to verify the facts that check for violations of the law.

The same law provides that said measure will not require against caution, the latter redundant provision (according to part of the doctrine) since the General Code of the Process itself in its arts. 306 et seq. regulates the preparatory proceedings to anticipate the completion of evidence that could be lost in another stage of the process without requiring caution, with the only difference that for art. 307 the measures are decreed in principle with summons from the party against whom it is requested.

The art. 17 of the new law determines that the judge, at the request of an interested party, has the power to order precautionary measures, in order to avoid the commission of the offense or that it be continued or repeated. Such measures consist of: a) the suspension of the illicit activity (either manufacturing, reproduction, distribution, communication or import), b) the kidnapping of the copies produced and the machines or materials with which they were produced and c) the seizure of the income obtained or, where appropriate, the remuneration due.

The law, in its art. 25 institutes a new instrument for the protection of rights called "border measures" so that when it is suspected that an import into the national territory of pirated goods that infringe copyright, the National Customs Directorate or the holders of Rights may require from the competent Judge control measures on them, their preventive kidnapping, precautionary suspension of customs clearance. These measures are essentially provisional and last until civil or criminal actions are filed within 10 working days from the notification to the right holder or his representative, in which case the preventive measures will be null and void by ordering the dispatch. of the merchandise.

In what has to do with the legal actions that give rise to the infractions to the law, art. 18 of the new law establishes that the injured party has civil action to obtain the cessation of the illegal activity, compensation for damages and a fine of up to 10 times the value of the product in violation, a fine whose nature is that of a penalty civil, so that not having a compensatory content can accumulate to the repair of damages.

Trademark Law