Introduction
The 21st century is opening its way before us as the era of technology, risks, globalization, cultural internationalization and free movement between States, where borders give up their delimitation spaces to allow the horizon of countries and countries to be expanded. Integration processes move the foundations of the old concept of sovereignty, giving way from the so-called absolute sovereignty to relative sovereignty. In this context, the protection of culture and its creators, the increase in scientific, technical and industrial production, as well as the insertion of our country in international organizations and agreements that includes the collective heritage and its creators in the most diverse manifestations, requires a coherent and effective criminal policy and dogmatics,that without signifying an obstacle to individual interests it manages to preserve the supra-individual ones in correspondence with the social function that the cultural content of the goods has.
Culture circulates as a commodity in its ideological aspect and in its material aspect, the need for its protection should not be optional, on the contrary, there must be a criminal political requirement that marks the passage of legislation and dogmatic interpretation of this phenomenon
Criminal science has a tormented relationship with politics because no branch of law has as much to do with irrationality as criminal law: criminal law disciplines irrational behavior and prevents irrational reactions, therefore, in the face of any analysis such as the one that a subject like this, the first idea to defend is its character of last rattio, because our wish would be that in matters of "culture", "identity", "historical heritage", "creation" among others, it was not present, because it does not have It makes sense to "reach out" to a branch of law, incapable in most cases of returning the good to its natural state, because the losses, deterioration or impairment are indisputably irreparable consequences and extraordinary social damage.
The grouping of copyright with that of industrial property under the common title of Intellectual Property is deeply rooted in teaching and in the doctrinal field, referring to a wide spectrum of rights of different nature since while some originate in an act of intellectual creation and are recognized to stimulate and reward intellectual creation, others through intellectual creation or not, are awarded in order to regulate competition between producers.
Copyright protects creations expressed in literary, musical, scientific, and artistic works in a broad sense, and is born with the work itself, as a consequence of the act of creation and not due to the recognition of administrative authority, although formalities may be established for different purposes.
Development
The right of the authors on their creation has drawn the attention of different international forums, since the adequate protection of these also allows to protect the cultural heritage of the nation, hence their close relationship even when the legal assets they protect are of a different nature. In general, cultural heritage corresponds to legal assets of a supra-individual nature, while Copyright protects the individual assets of its creator.
The initial protection of Copyright on an international scale was carried out through bilateral reciprocity agreements, which were insufficient, limited, and gave way to the Convention for the protection of literary and artistic works concluded in Bern in 1886, the Berne Convention, which has undergone significant modifications until the current Paris Act of June 24, 1971, also modified in 1979, to this important instrument have been added other pronouncements of significant importance, all this has created a gigantic movement on a scale International law on the protection of these legal assets and in criminal matters, we consider it appropriate to point out the pronouncements of the Agreement on trade-related aspects of intellectual property rights (TRIPS), which establishes the commitment of the States to punish the main infringing behaviors of Copyright or Related Rights, so there is a mandate from the international community on this matter
In the criminal doctrine, it is considered that from a technical perspective the infractions that attack both the cultural heritage and the rights of the authors, are a clear exposition of a controversy that has already been overcome in terms of considering the subsidiary or secondary nature of Criminal Law, and therefore, since they are precepts reserved to other branches of law such as Administrative Law, when it comes to Criminal Law the classification of conduct will be made up of numerous blank criminal norms, or excessive non-criminal normative elements, or criminal types " open ”, which oblige the interpreter to continually resort to exhaustive extra-criminal regulation.
However, criminal policy and dogmatics have a dialectical character, which allows them to be transformed in order to respond to the phenomenon of crime and to treat the offender, and to fulfill this role they must take into account the different sources, both internal and external. and the priorities of the different societies that are based on their traditions, systems, conceptions and also the transformation that criminal activity undergoes with the advancement of science, technology and culture.
Cuba maintained a long tradition of criminal protection of authors' rights, which begins with the Spanish Penal Code of 1870, extended by Royal Decree to its overseas islands Cuba and Puerto Rico, where under the rubric of fraud and other deceptions Article 552 established penalties for those who committed any fraud to literary and industrial property, later the Spanish intellectual property law of 1879 expanded the penalty with effect in Cuba.
In 1936, through Decree-Law 802, it is regulated in Title XIII crimes against property, also under the umbrella of Chapter V on fraud, blackmail and other deceptions, in its article 550 subsection 17 it represses anyone who knowingly deals with works or objects in which some fraud of literary or industrial property has been committed. A legal technical analysis allows us to propose that the legal asset that is protected is property, which is why it gives more value to the economic than to the moral, it is a crime of clear intentional choice because it is used "knowingly" as a subjective element that declares the author's purpose, the subjects are equally general and there is a result of damages.
A curious fact is that the CDS extends its protection to what today we could consider as a crime of trafficking and falsification of works of art, when in article 554, it establishes that: A) the one that knowingly introduces in the Republic with the purpose of sale or commercial speculation, works of art or products of any industry with the names of the author or manufacturers, trademarks or distinctive signs, falsified, altered or imitated in a way that may mislead the buyer about the origin, provenance or quality of the work or product and whoever sells it will be punished with deprivation of liberty for two months to one year, or a fine of sixty to two hundred installments. B) the same sanction shall be incurred by what with the intention of defrauding,trade or sell the works of art or products referred to in the previous section C) in these cases the court will also order the censorial publication of the sentence.
It is a crime of specific fraud, where the conduct is intended for the trade of works of art and the accessory sanction of censoring the sentence is very interesting, which is one of the mechanisms most frequently used today as a measure of general prevention.
Finally, Law No. 21 of February 1979, consistent with the codes that preceded it, establishes in Title XIII this time under the nomem iure of crimes against patrimonial rights, considering that the term patrimony is broader than that of property and encompasses not only the ownership of the property, but also the assumptions of possession or legitimate possession of these by a subject, broadens the criminal protection and with a more refined classification technique, it protects in the fifth and sixth Section, conducts that affect intellectual property. Article 400 called "Violations of Copyright", established:
1-is sanctioned with deprivation of liberty of three to nine months or a fine of up to two hundred quotas or both to those who: a) falsely attribute the status of author of a scientific, artistic, literary or educational work of others; b) deforms, mutilates or modifies in any other way a scientific, artistic, literary or educational work without the consent of its author.
2- Anyone who, in any way not provided for in the previous section, violates the legal norms and provisions established for the protection of Copyright, is sanctioned with a fine of up to two hundred and seventy installments.
In the Cuban system, the different types that make up the title of crimes against cultural heritage are complemented by the administrative regulations created for this purpose, but they are not alien to the typification technique referring to blank criminal regulations, since the judge must necessarily refer to the corresponding administrative body to understand some of the normative elements of specific figures,Therefore, we are of the opinion that to the extent that Administrative Law is strengthened, it will be able to take charge of some infractions whose border between the criminal offense and the administrative offense is very narrow and preserve the Criminal Law only for those most relevant cases such as the International Traffic in Cultural Heritage Assets of States in attacks on heritage or other equally dangerous formulations in the case of Copyright.
As for the legal asset protected in cultural heritage, it is of a collective nature and this is determined by the social function that historical heritage entails, it becomes a legal asset of a general nature, since it attacks a whole group of citizens. that make up the scope of protection of these figures, based on the fact that safeguarding the historical and cultural legacy of a nation means maintaining its roots and identity, although in criminal doctrine it is adduced with relative frequency that this protection directly affects the scope of provision and ownership of the owner of the asset who cannot freely dispose of it, but this is based on the arguments of necessity and function mentioned above.
Legal assets are also identified in their protection by what they represent in the identity of peoples and their social value, so the protected legal asset is the cultural and social value of said assets, both in one case and in the other, passing to a second plane its economic value, which undoubtedly has importance for the classification of behaviors.
If we follow this line of thought, we would have to maintain the initial idea that by protecting the intellectual property of the creators, we are in the same way giving protection to the cultural heritage and its authenticity. The traditional conception of the legal good modeled on the singular individual, and not on the indeterminate collectivity of subjects; It can hardly define the scope of protection granted to offenses of diffuse supra-individual interests in contemporary society that deserve a priority in its attention and for which objections of a criminal political nature are sometimes opposed. The idea of the legal good leads, therefore, to a rational criminal policy: the criminal legislator must measure his decisions with fair and clear criteria, using them, at the same time, for justification and criticism.Everything that has nothing to do with the protection of legal assets must be excluded from the scope of Criminal Law.
The theory of legal good has long distinguished between "individual" legal rights and supra-individual or macrosocial legal rights. This distinction is very useful to answer the question of whether a person can validly consent to the injury of a legal good and can defend himself against an attack on "his legal good", since both consent and defense suppose that the affected legal good in each case it belongs to the one who consents or defends himself, that is, it is an individual legal asset. But really, outside of this case, the distinction does not have much importance, because the general structure of the system must direct the protection of the collective assets. Considering the extension that should be given to such a distinction and how it should be configured in the specific case.For this, two theories are taken into account: dualists and monists.
From the dualist point of view, the distinction is maintained by admitting that there are two classes of legal rights. This solution, in the absence of the conceptual culmination of the two columns, is unsatisfactory, but has the advantage that it exempts the search for a superior common concept, thus avoiding having to choose in the harsh alternative to which we previously alluded between the vagueness and the remoteness of the praxis. For monistic theories, on the other hand, there are only two possibilities of conceiving the legal good and both possibilities are mutually exclusive. Or it is conceived from the point of view of the State, considering in this case individual legal rights (life, health, etc.) as simple legal attributions derived from the functions of the State. Or it is conceived from the point of view of the person,Considering then that macrosocial legal assets are only legitimate insofar as they serve the personal development of the individual. The dualistic distinction is acceptable only from a pragmatic point of view because, without the need to generalize its results, it achieves a relatively precise description of legal rights. But, from the theoretical point of view, this approach resigns itself too soon to the conceptual difficulties. It fails, for example, to offer a unitary vision of Criminal Law, as it cannot give a consistent concept of legal good. And, on the other hand, since the two classes of legal assets are so different in origin and consequences, it cannot avoid having to opt for a State model and, therefore, for a certain political and philosophical foundation of Criminal Law,when making your decisions.
Among monist theories, macrosocial legal rights have dominated criminal political discussion in recent years. This is undoubtedly the consequence of a modernization of Criminal Law that has had to adapt to social evolution and change. But this is not any reason or motive to conceive the legal good from the prism of supra-individual legal rights and consider that individual legal rights are nothing more than the rights derived from them. And in the relationship between protection of cultural heritage and intellectual property, this perspective is present.
Legal assets are also identified in their protection by what they represent in the identity of peoples and their social value, so the protected legal asset is the cultural and social value of said assets, both in one case and in the other, passing to a second plane its economic value, which undoubtedly has importance for the classification of behaviors.
If we follow this line of thought, we would have to maintain the initial idea that by protecting the intellectual property of the creators, we are in the same way giving protection to the cultural heritage and its authenticity. The traditional conception of the legal good modeled on the singular individual, and not on the indeterminate collectivity of subjects; It can hardly define the scope of protection granted to offenses of diffuse supra-individual interests in contemporary society that deserve a priority in its attention and for which objections of a criminal political nature are sometimes opposed. The idea of the legal good leads, therefore, to a rational criminal policy: the criminal legislator must measure his decisions with fair and clear criteria, using them, at the same time, for justification and criticism.Everything that has nothing to do with the protection of legal assets must be excluded from the scope of Criminal Law.
In Cuba, that perspective, from my point of view, is based on the constitutional anchoring that "cultural" has as the heritage and identity of the Cuban people. It is not by chance that the constitutional text in its chapter V destined to Education and Culture, protects in paragraph d (…) Vocation for the creation and cultivation of art (…) while in subsection h it pays special attention to (…) the identity of Cuban culture, the conservation of cultural heritage, and artistic and historical wealth (…), For this reason, there is no doubt that in the Cuban State there is a clear vocation to protect these legal assets from individual and collective interests, however, they represent very problematic fields:where the dice of criminal intervention are not played on the table of mere constitutional recognition of the assets at stake on each occasion, but rather demand either further weighting between the interests at stake, or the implementation of guardianship techniques appropriate to the characteristics of the respective offenses, which has not occurred in all cases.
The intellectual property protected legal asset is made up of personal and patrimonial rights that give the author the full disposition and the exclusive right to exploit his work, with no limitations other than those established by law.
This leads us to delimit the presence of two objects of protection in this legal asset, one called the moral order, which corresponds to the author on its creation and the other is aimed at obtaining economic benefits, for Professor Morillas Cuevas this distinction it corresponds to the name that is made of the legal asset, whether of crimes against intellectual property or crimes against copyright. It is to mean that a majority sector of the doctrine, particularly the Spanish one, considers that these conducts, are related to one aspect or another, that they require, in order to be punishable, to obtain an economic benefit or profit motive in the commissioner subject.
They are blank criminal types, which refer to the legislation on intellectual property, to give content to the main concepts that are part of the normative elements of the criminal type and its registration or not is inconsequential, the author has rights from the moment of creation of the work.
A range of guiding verbs can be used over the creator's work.
The subjective element is made up of the profit motive, which makes it clear that there is a generic intent in the different formulations and, in some cases, the damage to third parties is required as a complement, which can be understood in three ways: causing damage to the property of others that would be the result of the crime; as a subjective element of the unjust with a specific intent and as an objective characteristic of the behavior, taking into account that the act must be suitable as an objective condition.
Both active and passive subjects are of a general nature, of course that the taxable person will have the quality of being the owner of the Copyright, although there may be a diversity of taxable persons if neighboring rights are taken into account, expanding from this way the basis for civil liability.
Now, on this subject of legal rights, it is necessary to point out that, taking into account the particular protection of folklore as part of popular culture, there are serious drawbacks of criminal policy since it is not possible to find a direct subject on which the act falls in intellectual matters., the elements of folklore can be easily protected by the norms included in the protection of cultural heritage as an integral part of it.
It is a crime of specific fraud, where the conduct is intended for the trade of works of art and the accessory sanction of censoring the sentence is very interesting, which is one of the mechanisms most frequently used today as a measure of general prevention.
We are in the presence of a criminal type of "open" formulation, which refers to another legal system to determine the established provisions, thus forming a blank criminal norm, which can be committed by fraud or negligence because the criminal type does not close its subjective element, also demanding a result but not an economic benefit, but there is no doubt that it had elementary protection for intellectual property.
This does not prevent some figures from occasionally picking up assumptions that are related to the established legal right, such as the formulations of the crime of transmission, illegal possession of cultural heritage assets and falsification of works of art, which is classified as crimes against cultural heritage
Article 246 of our Cuban Penal Code includes two different behaviors, one of falsifying and the other of trafficking in works of art, affecting well its creator, that is to say that the taxpayer here is directly who made the work and what is protected is the impact on his creative talent. We must point out that the behaviors can be found in competition with other figures such as scams, robbery and theft.
Society as a whole is affected by the deprivation of the authenticity of a work of art or by traffic. Here there is that clear mixture of cultural heritage with intellectual property, the classification of crimes depends on what is provided in each case by the legislator, as unlawful conduct generally in the special laws on the authorial matter or in the legal body itself. Open criminalization is very frequently used as continuous advances in technology make it difficult to anticipate all criminal modalities. The most commonly accepted figures are piracy, plagiarism and falsification.
Counterfeits in criminal matters can take different forms and are those that in some way introduce in the work of art, some sign, mark, or any other sign that could mean a distortion both in the work and in the identity of its creator, I believe that the introduction of this precept was an urgent need, although in a future modification both conducts could be divided, that is, those of forgery and those of trafficking, to make their treatment more refined.
Traffic is conceived as a trade or business, which implies a lucrative purpose, therefore it means a highly dangerous behavior when it comes to objects such as works of art, which can mean a serious dispossession for their creator or heritage.
The figure contemplates an aggravated type when a serious damage is produced as a result of the facts, note that this is an expression of social ethical value content, independent of the economic value that the object on which the action falls.
Other attacks, directly related to the author's heritage to deprive him of his works, may have a criminal response in the crimes of theft, robbery, appropriations, fraud or damage, but it would not be in direct relation to intellectual property but to the affectation of heritage of the taxpayer, if we start from some points of view expressed by dogmatics and previously valued, this would not entail major difficulties. I think that the essential difficulty is centered on the possibility of framing their own and typical behaviors of this legal right, such as plagiarism in which there is no criminal protection.
In 1977, a year after the Cuban Constitution was approved, the National Assembly of People's Power approved two Laws that developed the spirit of the Constitution in matters of assets that are part of the cultural heritage, which were Law No. 1 or Law for the Protection of Cultural Heritage and the Law No. 2 or Law of National and Local Monuments, we are only going to refer to those aspects that have a direct impact on the conformation of criminal types, although of course to clearly understand the object of protection it is necessary to analyze the laws as a whole.
Law No. 1 of 1977 in its article 7 declares the public utility and social interest of cultural property and thereby reinforces the conception about the legal good that we previously exposed, and also indicates that they cannot be destroyed, renovated, modified or restored., without prior authorization from the Ministry of Culture, which is the body in charge of specifying and declaring the assets that are part of the Cultural Heritage of the Nation.
For its part, article 9 prohibits the transfer of ownership or possession of property protected by law, although authorization can be obtained to do so, note that this is the formulation of one of the provisions of the Penal Code that we are going to analyze later. that the controversy about who should protect these infractions is resumed, and it establishes that those who violate this provision will be sanctioned and the confiscation of the corresponding property will be ordered.
However, article 12 of this administrative regulation indicates that the extraction or the attempt to extract cultural property from the national territory, without authorization constitutes a crime of Smuggling, which denotes an error because since the enactment of Law 21 of 1979 these behaviors make up the crime of Illegal Extraction from the country of Cultural Heritage assets
Regarding Copyright, Law No. 14. Copyright Law of December 28, 1977 is in force, which includes the general foundations of the protection of the creator, but tending to our interest we only point out that the article 50 establishes that violations of copyright are sanctioned in the manner established by current criminal legislation, and those affected may exercise the corresponding actions, this pronouncement is not developed in the Criminal Code, so we return to the statement that said Law does not defines criminal figures, but refers to the Penal Code where unfortunately only the falsification of works of art is regulated, the rest of the typical harmful behaviors being decriminalized.
Criminal Codes have been characterized as monolithic legal bodies that are pronounced by the system of principles and rules that characterize the fight against crime in its different manifestations, providing in its general part a set of circumstances that serve for a uniform application and a coherent treatment of the perpetrator of the crime, which on many occasions is broken in these laws, which deviate from the foundations that inspired the criminal legislation.
Cuba, which, as we already know, does not have protection per se for these conducts, should not consider the creation of a criminal type outside the Code, however, a preliminary draft of the Copyright law was analyzed, which in its Title IX Chapter III referred to The criminal protection in its Article 112-1 stipulated that: “It is sanctioned with deprivation of liberty from three months to one year or a fine of five hundred to one thousand quotas, or both, who:
a) A work created by another person is attributed as their own in whole or in parts
b) Reproduce, communicate, distribute, transmit, represent or perform a work, without the consent of its rights holders.
c) Transform, modify, adapt, translate or alter a work for the purposes of its dissemination without the consent of its right holders.
d) Make a work of public knowledge, whether onerous or free, to the detriment of its integrity and the prestige of the author.
e) Falsify a work, with the deliberate purpose of causing deception.
f) Market a work originally intended for free use, without due remuneration to the right holders.
g) Import, manufacture, sell, lease, offer services or put into circulation in any form, apparatus or devices intended to decipher the coded signals or to search for any of the protection systems referred to in article 26 of this Law.
2. The sanction is deprivation of liberty from six months to two years or a fine of one thousand to fifteen hundred installments, or both if, as a result of the crime, serious damage is caused or considerable damage is caused.
For its part, article 113 established that the sanctions provided for in article 112 would be applied as pertinent to conducts that affect the rights of the holders of related rights.
The project has not seen the light and, however, that we recognize that the formulation is broad and gives protection to the most varied guiding verbs, it should not be the way in which behaviors are typified when there is a tradition among us in the Penal Code for adequate protection of conduct.
Law No. 62 of 1988, whose main merit was to extract from criminal law a significant number of behaviors that, due to their social insignificance, did not merit a punitive response in criminal courts, and became part of the administrative sanctioning law.
This decriminalizing proposal was due to criminal policy reasons, if I resumed that initial analysis I would say that it was a criminal policy that was not adequately linked to the dogmatics for the interpretation of the phenomenon, hence its conceptual error, which currently maintains the legislation of a special punitive response.
This does not preclude that some figures in a specific manner collect assumptions that are related to the established legal right, such as the formulations of the crime of transmission, illegal possession of cultural heritage assets and falsification of works of art, which is typified in crimes against cultural heritage
Conclusions
The exciting subject of intellectual property has a doctrinal development in the field of administrative law, but it is very diverse in criminal laws, having different formulas for its criminalization, either in special laws or in criminal codes, it portrays a legal asset of individual nature that must express an economic affectation or a damage to its creator so that it can be framed in a criminal type, the situation is aggravated when the protection that is sought is aimed at popular culture specifically folklore that has rather a content within cultural heritage by reason of being a legal asset of a supra-individual character with a determining social function.All this leads us to the conviction that criminal law should be the last instrument to be used for the protection of popular culture.
When the State establishes itself, by any means, as the holder of the Copyright, it means that it will be the only one authorized to exercise the powers that are part of it and only it may or may not authorize its exercise. When the work is in the public domain, the ownership of the copyright does not correspond to the state, but rather makes such works a patrimony of humanity, accessible to anyone with the due authorization of the state, which must deploy the means to guarantee that the works that make up the cultural heritage of the nation reach the public without distortions or alterations that undermine their value and authenticity.
Current Cuban criminal legislation on intellectual property is omission, which leaves the author and his work unprotected.
Legislation could not be devoid of criminal sanctions, which repress infringements of the rights of the authors, therefore, in addition to providing criminal sanctions, there are precautionary measures that are of fundamental importance to avoid the consummation of the crime and to ensure evidence, goods or the object of the process.
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Websites
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• htpp: //www.monografias.com
Footnotes:
1. The author is the subject par excellence of the so-called intellectual property, to the point of serving as the denominator of the matter in our legal system.
2. TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights.
3. The Social Defense Code, the first penal Code of the Republic of Cuba, is approved.
4. First Socialist Code of the Republic of Cuba.
5. All works that due to their cultural importance and their significance in shaping one's own national identity, become part of the so-called cultural heritage, with the State acquiring the obligation to preserve and care for them.
6. Those who do not have a single taxable person and if a significant number of injured parties.
7. Comment of Dra. Ojeda Rodríguez, on the preliminary draft analyzed in December 1999.
8. Code of Decriminalization.
