Ownership and transferEligible owners
Who is the owner of a copyrighted work?
The author of the work is the primary owner of is copyright, and the person acquiring said rights, in any capacity, is the secondary owner. Notwithstanding the aforesaid, the Law has certain special rules about rights’ ownership regarding certain works, some of which are:
- anthologies and compilations: the organiser is the copyright holder, but he or she is obligated to obtain authorisation and to pay the copyright holders of the works being used;
- cinematographic films: the producer is considered the holder of the copyright of the film itself and the authors of the plot, music, lyrics of the songs and dubbing are holders of the rights over the literal elements of said work, which are independently considered for protection purposes, maintaining the right to use, separately, their respective contributions, provided they have not agreed their exclusive use for the film’s production, in which case the rights are considered as assigned to the producer (see question 24);
- public entities: works produced by public officials while performing their duties belong, accordingly, to the state, municipalities, official corporations, semi-public or autonomous institutions and other government entities for which they are working; and
- computer programs: there are special regulations concerning their ownership (see question 23).
May an employer own a copyrighted work made by an employee?
There is no work-for-hire regulation in Chile. Rights over work created by employees while performing their duties resulting from a work relationship belong to the employees.
Only in special circumstances will the employer own the copyright of a work made by an employee, such as the following:
- computer programs: the Law makes an exception by stating that the holders of the respective copyright are the natural persons or legal entities whose employees, while performing their duties, have produced them, unless it is otherwise stipulated in writing;
- works produced by public officials while performing their duties: such works belong, accordingly, to the state, municipalities, official corporations, semi-public or autonomous institutions and other government entities for which the officials work; and
- works produced by employees of a newspaper company, radio and TV stations, and information agencies: the company holds the right to publish in the newspaper, review, periodical, radio or TV station for which the authors provides their services, articles, drawings, photographs, or other productions provided by the authors under a labour agreement, ensuring the authors’ other rights as those protected by the Law.
May a hiring party own a copyrighted work made by an independent contractor?
Both the Law and general provisions concerning contracts say nothing with respect to works commissioned by a third party and, therefore, following general rules, the respective rights are not considered as assigned to the party commissioning the works.
Notwithstanding the aforesaid, there are some presumptions of transfer of rights established in the Law:
- cinematographic films: the contract between the authors of the literal elements of the film and the producer, provided they have agreed on their exclusive use for the film production, entails all the rights over the work to the producer, including all of its elements, and authorises him or her to broadcast it to the public, show it on television, reproduce it in copies, rent and transfer it;
- computer programs: in the case of software produced by commission of a third party, the rights of the developer to whom the work has been commissioned are considered as assigned;
- photographs: the photographer has the exclusive right to reproduce, exhibit, publish and sell his or her photographs, except those done by virtue of a contract, in which case the publication right belongs to the party commissioning said work; and
- productions commissioned by a newspaper company, radio and TV stations, and information agencies: the company holds the exclusive right to the publication in the first edition published following their delivery, unless they have been expressly commissioned for a later edition. Once the corresponding period has expired, the author shall be free to dispose of them as he or she chooses.
May a copyrighted work be co-owned?
The Law considers the existence of ‘works in collaboration’ (ie, jointly produced by two or more natural persons whose contributions may not be separated). The powers inherent to proprietary equity and pecuniary benefits of the work in collaboration correspond to their co-authors as a whole, and may be published at the request of any one of them. Those co-authors who oppose publication may only demand the exclusion of their name while retaining their economic rights.
Concerning cinematographic films, notwithstanding the producer’s rights, to whom the respective rights have been assigned (see question 22), the authors of the plot, staging, adaptation, script and music especially composed for the work, and the director, are considered as co-authors of the film made in collaboration.Transfer of rights
May rights be transferred?
The Law expressly authorises the authors, and copyright and neighbouring rights holders, to transfer the totality or a part of their rights over the work. The party acquiring said rights, in any capacity, is called a ‘secondary holder’ of the copyright. A transfer is only possible in the case of patrimonial rights (reproduction, publication, etc), and is not possible in the case of moral rights (authorship, rights over unpublished material, etc), which are only transferable through succession in the case of death.
The total or partial transfer of copyright or neighbouring rights, in any capacity, must be done through a contract executed in a public instrument or private instrument authorised by a public notary, which must be registered in the Intellectual Property Registry within 60 days, as of the date of execution of said act or contract.Licensing
May rights be licensed?
Yes. The permit granted by the copyright holder is the authorisation granted by him or her, in any contractual manner, to use the work in accordance with the manner and through the media established by the Law.
The authorisation or licence must specify the rights granted to the authorised party, stating the period of duration, the remuneration and form of payment, the minimum or maximum number of authorised shows or copies or, if they are unlimited, the territory of application and all other limiting clauses imposed by the copyright holder.
The licence holder is not granted any rights other than those stated in the authorisation, except for those inherent to the same according to their nature.
Are there compulsory licences? What are they?
The Law considers the existence of certain licences mandatory in matters of collective management. (See question 29.)
Are licences administered by performing rights societies? How?
Collective management of copyright and neighbouring rights may be conducted in Chile by non-profit corporations that have the sole purpose of managing collectively copyright and neighbouring rights, and that have obtained authorisation to operate from the Ministry of Education. Said entities are obliged to accept the management of copyright and other intellectual property rights that have been entrusted to them.
There are a series of licences of a mandatory nature associated with the work carried out by performing rights societies, which must always be granted by said entities. The licence holder may also receive the respective authorisation directly from the copyright holder.
Thus, every owner, concessionaire, user, entrepreneur, lessee or person operating any showroom, public premises, or broadcasting or television station in which plays, films or musical shows are performed or represented, or phonograms or videograms containing said works, of national or foreign authors, may obtain the authorisation through a non-exclusive licence from the corresponding performing rights society. Performing rights societies are obliged to contract, with whoever requests it, the concession of non-exclusive authorisations of copyright and related rights they manage, and may only refuse to grant said authorisations if the applicant does not offer sufficient guarantees for the payment of the corresponding fee.
In the case of using phonograms or their reproduction for radio or television broadcasts, or any other public form of communication, the user is obliged to pay a remuneration to the artists, interpreters or performers and to the producers of phonograms, and the collection of the phonogram performance rights must be carried out by the performing rights society representing them, but in no event may the authorisations granted by said performing rights society limit the power of the copyright holders to manage their works individually in the case of single uses.
The Law establishes that the fees for licences granted by performing rights societies are established by the entities through the management body envisaged in their by-laws and will govern as of the date of its publication in the Official Gazette. Notwithstanding the aforesaid, performing rights societies may enter into contracts of special fees with user associations, which will be applicable to the members of said organisations, and any user requesting it may be entitled to said special fees. The 2010 copyright amendment introduced a mandatory mediation and arbitration panel on royalties to resolve controversies arising due to the royalties set by performing rights organisations for the use of their works. Only a legal entity or association with legal status may act as counterpart of a performing rights organisation in these proceedings, which is not individually available to companies.Termination
Is there any provision for the termination of transfers of rights?
There is no provision for the termination of transfers of rights.Recordal
Can documents evidencing transfers and other transactions be recorded with a government agency?
As mentioned in questions 26 and 30, total or partial transfer of copyright or related rights, in any capacity, must be recorded in the Intellectual Property Registry within 60 days as of the date of execution of the respective act or contract. The resolution of the contract that gave rise to the transfer must also be recorded within the same period.