Law 20,243 was promulgated in 2008 and established norms regarding the moral and patrimonial rights of performers of audiovisual artistic works. Article 3 of the law states that:
"The performer of an audiovisual work, even after the assignment of his or her patrimonial rights, will have the inalienable and untransferable right to receive remuneration for any of the following acts performed in relation to audiovisual support of any nature in which his or her audiovisual performances are fixed or represented:
a) Public communication or broadcast by Television and/or Cable channels, movie theaters or by any means, digital or analog.
b) Availability to the public via digital interactive means;
c) Rental to the public, and
d) The direct use of a videogram or any other audiovisual support or a reproduction of the same, with profit-making purposes, for its diffusion in a venue or place accessible for the public by any appropriate instrument.
The remuneration referred in this article will not be understood to be included in the assignment of rights that the artist has celebrated before this law and will not affect the rest of the rights recognized by the Intellectual Property Law to the performing artists of audiovisual works."
Law 20,959 was published on October 29 2016 in the Official Gazette. Article 1 of the law extends the rights established in Article 3 of Law 20,243 to directors and scriptwriters. As a result, directors and scriptwriters now have the inalienable and non-transferable remuneration right established in the aforementioned law. Remuneration can be collected through the collective management entity that represents directors or scriptwriters. The amount of the remuneration will be determined according to the rules contained in Article 100 of the Intellectual Property Law.
Law 20,959 also establishes a remuneration right defence, indicating that "the obligation to not exercise the right or to not join a Collective Management Entity... will be considered as unwritten and will be invalid for all legal effects". In this manner, the law prevents directors and scriptwriters from being forced to renounce their remuneration rights through abusive clauses.
Nonetheless, the rights granted to directors and scriptwriters will be subject to the limitations and exceptions included in Title III of the Intellectual Property Law.
Article 2 of Law 20,959 states that the remuneration of directors, scriptwriters and artists for the cinematic presentation of foreign films to the public – as referred to in Article 3(A) of Law 20,243 – must be in accordance with Article 29 of the Intellectual Property Law (ie, the price agreed in the rental contracts of foreign films includes the value of all copyrights and related rights due to the cinematographic work and is the distributor's responsibility). The exhibitor of cinematographic works will act as the collector of such funds.
Law 29,959 will enter into force on April 29 2017.
For further information on this topic please contact Juan Pablo Zamora Iturra at Montt y Cia SA by telephone (+56 22 233 8266) or email ([email protected]). The Montt y Cia SA website can be accessed at www.monttcia.cl.