Ownership and transferEligible owners
Who is the owner of a copyrighted work?
Moral and economic rights by operation of law pertain to the author (individual) by virtue of its creation. Moral rights belong to the author perpetually and cannot be transferred. Economic rights may be subject to transfer or licensed to a different person or to a company.Employee and contractor work
May an employer own a copyrighted work made by an employee?
For an employer to be the owner of the economic copyright of a work made by an employee, it is necessary that an employment agreement between them exists, which must include a provision stipulating that all economic rights over artistic or intellectual works created by the employee during his or her work will vest in the employer.
In accordance with Federal Copyright Law, if an employment agreement does not include this provision, it shall be presumed that the economic rights are shared equally between the employer and the employee.
In the absence of an individual employment agreement executed in writing, the economic rights belong to the employee.
May a hiring party own a copyrighted work made by an independent contractor?
Yes. A natural person or legal entity may enter into a ‘work-for-hire’ contract with an author. In this case, the natural person or the legal entity shall enjoy the ownership of the economic copyright therein for the duration allowed by law, and the rights relating to the disclosure and integrity of the work and the making of collections involving this type of creation shall accrue to him or her.
The person who takes part in the making of the work against remuneration shall have the right to the express mention of his or her status as author or performer of the part or parts in the creation of which he or she has been involved.
According to Mexican law and practice, a ‘work-for-hire’ relationship is different to that of an assignment. In the first, there is a production of a work by virtue of a commission by the ‘producer’ to the author and, in the second, an author develops a work and transfers the economic copyright to another party for a limited time (see question 26).Joint and collective ownership
May a copyrighted work be co-owned?
Yes, it is possible that a copyright work be co-owned either by natural persons or entities under a co-ownership agreement.
According to article 81 of the Federal Copyright Law, unless otherwise agreed, the copyright in a work with music and words shall belong in equal shares to the author of the literary part and to the composer of the musical part. Each may freely exercise the rights in the part attributable to him or her or in the whole work and, in the latter case, shall unmistakably notify the other co-author, mentioning that co-author’s name on the publication and, in addition, shall pay the co-author the share to which he or she is entitled when the rights are exercised for profit-making purposes.Transfer of rights
May rights be transferred?
Economic rights can be subject to transfer or licence. Taking this into consideration, a third party, either an individual or a company different from the author, can be the owner of the economic rights over a work only if the author had transferred such rights by executing a formal assignment document complying with applicable requirements or if the author recognises that the work was made under a work-for-hire relationship (see question 24), or through an employer-employee relationship (see question 23).
For a transfer of the economic rights to be enforceable in Mexico through an assignment agreement, the agreement:
- must be in writing;
- must contain a provision reflecting the consideration paid to the author; and
- must have a clause to stipulate the duration of the copyright transfer.
As a general rule, the transfers of copyright have a limited duration. Once the term has expired, the rights transferred are deemed to revert automatically to the author. The maximum duration for a transfer of copyright is 15 years as of the date of execution of the assignment agreement. This term may only be extended if there are special circumstances justifying an extension, such as the nature of the work and the investment in the development and production of the work. If an agreement does not have a specific disposition providing for the duration of the transfer by operation of law, the duration of the transfer is for five years as of the execution of the agreement.
This general rule has, however, two important exceptions for literary works and software. Pursuant to articles 43 and 103 of the Federal Copyright Law, the transfer of economic rights for them is not limited in time.Licensing
May rights be licensed?
Economic rights can be subject to exclusive or non-exclusive licence. The licence will be validly enforceable in Mexico if it is done through written agreement and if the agreement contains a provision reflecting the consideration paid to the author.
Concerning the minimum clauses and formalities for a copyright licence agreement to be valid in Mexico, the following must be observed:
- the agreement must be in writing;
- it must have a clause to indicate whether the licence is exclusive or non-exclusive;
- it must establish the payment of an economic consideration or royalty by the licensee to the licensor for the granting of the licence; and
- it must have a provision regarding the duration of the licence.
Are there compulsory licences? What are they?
According to article 147 of the Federal Copyright Law, there is compulsory licence in Mexico to publish or translate a literary or artistic work due to public interest for the advancement of science and national culture and education. When it is not possible to obtain the authorisation of the owner of the corresponding economic copyright, the federal government may, through the Secretariat of Culture and either ex officio or at the request of a party, license the publication or translation of the work through a payment of compensatory remuneration.
Are licences administered by performing rights societies? How?
Collective management organisations in Mexico have the main purpose of managing copyright and neighbouring rights collectively on behalf of their members, protecting national or foreign authors and owners of neighbouring rights and collecting and delivering to them the royalties derived from the use of their works or performances. It is important to note that pursuant to the Federal Copyright Law, authors and performers have the non-waivable remuneration right to collect royalties for the public use and communication of their works or performances. Collective management organisations may grant licences for the use of works or performances to third parties, provided that their members have granted them the right to perform this activity.Termination
Is there any provision for the termination of transfers of rights?
The transfers of economic copyright is subject to a term with regard to the duration of the transfer. Once the term has expired, the rights are deemed to revert to the author automatically (see question 26).Recordal
Can documents evidencing transfers and other transactions be recorded with a government agency?
The registration of a copyright transfer with the National Copyright Institute is necessary for the transfer of rights to produce legal effects against third parties. The National Copyright Institute applies Mexican law when analysing the application for the registration of a copyright transfer and its corresponding agreement. In this regard, the transfer agreement needs to comply with the provisions of the Federal Copyright Law.