Introduction
Copyright in Peru
Moral right of integrity
Case study
Comment
Every work of art that is the product of human creativity is made up of two essential elements:
- the "corpus mysticum", which is the work in the strict sense of the word; and
- the "corpus mechanicum", which is its material support.
Although these elements are closely linked, they are independent of each other.
However, in works of visual art, this distinction is not possible due to a special characteristic that this type of work possesses – namely, uniqueness. This arises from the dependence that the creation itself has on the material support that contains it – that is, the corpus mechanicum is not only the support through which the corpus mysticum materialises, but also an absolutely necessary element for its creation. For example, a pictorial work is created at the moment the paint is applied to a canvas or other material, while in a literary work, the story is created in the author's mind and is subsequently materialised through the book or any other type of material support.
This uniqueness of visual art prevents its serial reproduction since a simple change in the brushstroke on the canvas or in the shape of the marble to be carved represent significant differences. Therefore, this type of work always constitutes unique copies. This is not the case for literary or musical works, since both books and compact discs can be replicated thousands of times. It is precisely this quality of uniqueness that generates a series of conflicts when more than one owner of rights over this type of work converge.
In Peru, copyright – unlike copyright in Anglo-Saxon countries – is made up of two types of rights:
- moral rights, which always belong to the author; and
- economic rights, which can be exercised both by the author and by any natural or legal person to whom they have been transferred.
In this respect, both article 21 of Legislative Decree No. 822 (the Copyright Law) and article 11 of Andean Decision No. 351 (the Common Regime on Copyright and Related Rights) recognise that moral rights are perpetual, inalienable, unattachable, unrenounceable and imprescriptible, which entitles the author to prevent actions against them, even if they have transferred their economic rights.
In works of visual art, the defence of moral rights will have a significant relevance. When transferring their economic rights, the author loses control not only of the corpus mechanicum but also of the corpus mysticum. This makes this type of work more vulnerable to the infringement of moral rights – primarily, the right of integrity.
According to article 25 of Legislative Decree No. 822, the moral right of integrity "entitles the author, including in his relations with the acquirer of the material object embodying the work, to object to any distortion, modification, mutilation or alteration thereof".
While this article clearly indicates the scope of the moral right of integrity, significant ignorance about it remains. The best example of this occurred in March 2015, when the metropolitan municipality of Lima erased several artistic murals in the historic centre of the city without the consent of their authors. To date, this is the most emblematic case of infringement of the moral right of integrity that has arisen in Peru.
Among the murals erased was a work called "Aire", which had been commissioned by the previous municipal administration to the artist Leonardo Fernández "Olfer", who was the only one of those affected who denounced these facts before the Copyright Commission of the National Institute of the Defense of Competition and Intellectual Property Protection (Indecopi).
The municipality's defence argued that the author's moral right of integrity in relation to "Aire" had not been infringed because the author had signed an affidavit of confidentiality in which he had given his consent that the intellectual rights of the products and documents produced as a result of the provision of the service would be the property of the municipality.
The Commission rejected this argument because moral rights are inalienable and therefore cannot be assigned. It also emphasised the ideal and material aspect of the infringement of the moral right of integrity in relation to works of visual art – as they are unique copies, their mutilation or alteration implies their destruction, which is one of the most serious infringements of copyright.
In this sense, the Commission declared the complaint well-founded and sanctioned the municipality of Lima with the payment of a heavy fine. The municipality appealed this decision to the second instance, the Specialised Intellectual Property Court, which confirmed the existence of an infringement of the moral right of integrity following the same criteria as the Commission. However, the Specialised Intellectual Property Court significantly reduced the fine imposed.
The impact of this case was such that it motivated the modification of article 25 of Legislative Decree No. 822. The amendment added the term "destruction", which had not initially been expressly indicated, as one of the assumptions to which the author of a work is entitled to oppose in order to protect the integrity thereof.
From this amendment, it can be deduced that the previous drafting of article 25 of Legislative Decree No. 822 did not take into account the special characteristics of works of visual art, the integrity of which can be affected to the point of total disappearance since they are unique and unrepeatable specimens. This situation is unlikely to happen, for example, in the case of musical or literary works, since these can be replicated, which means that every individual copy would have to be destroyed.
The moral right of integrity deserves special protection in works of visual art, in order to avoid the disappearance of unique creations due to arbitrary and unjustified acts such as those of the municipality of Lima. Unfortunately, the fact that the Court tends to reduce the fines imposed by the Commission, even if they are reasonable, instead of helping to fulfill their dissuasive purpose, encourages offenders to appeal the Comission's resolutions, since they will likely achieve a reduction in the fine anyway. However, the positive aspect of the murals case is that it emphasised to the Peruvian authorities the importance of valuing art in all its forms of expression.
For further information on this topic please contact Kelly Sánchez at OMC Abogados & Consultores by telephone (+51 502 6467 or +51 635 0641) or email ([email protected]). The OMC Abogados & Consultores website can be accessed at omcabogados.com.pe.