Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

Unauthorised reproduction, distribution, public communication (including making available to the public), and transformation of copyrighted works.

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Yes, second liability for indirect infringement was added to the SCA in 2014 (by Law 21/2014) to include those who ‘indirectly’ infringe copyright via the internet (eg, internet service providers that knowingly provide the means - by providing links or organising content uploaded by users - for their users to share and use illicit content), especially those that:

  • knowingly induced the infringing conduct;
  • cooperated with the infringer, knowing that the content would infringe the rights of other parties, or having reasonable indications to know it;
  • had a direct economic interest in the results of the infringing conduct; and
  • had the capacity to control the behaviour of the offender.
Available remedies

What remedies are available against a copyright infringer?

The following remedies are available:

  • the publication, in part or in full, of the judicial resolution, at the infringer’s expense;
  • suspending the infringing exploitation or the infringing activity;
  • prohibiting the infringer from developing or resuming the infringing exploitation or activity;
  • withdrawing and destroying unlawful copies and equipment used for the infringing activity;
  • removing instruments used for unauthorised suppression or neutralisation of any technical device used to protect works; and
  • damages for:
    • the loss suffered due to the infringement;
    • loss of profits; and
    • expenses incurred by the rights holder to secure reasonable evidence of infringement.
Limitation period

Is there a time limit for seeking remedies?

Yes. The statute of limitations is five years.

Monetary damages

Are monetary damages available for copyright infringement?

Yes.

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

Yes.

Criminal enforcement

Are there criminal copyright provisions? What are they?

Yes, Criminal Code punishes the following criminal activities against the copyright of exclusive owners:

  • The reproduction, plagiarism, distribution, public communication or, in any other way, the economic exploitation, in whole or in part, of a work or performance, fixed in any type of form or communicated through any means, without the authorisation of the intellectual property rights holders or their assignees, with the aim of obtaining a direct or indirect economic benefit, and to the detriment of a third party.
  • To provide access to, or the location of, intellectual property on the internet in an active and non-neutral way, without the provider limiting itself to a merely technical treatment and without the authorisation of the rights holders or their assignees - in particular, obtaining a direct or indirect economic benefit by offering classified lists of links to the works and contents referred to above, even if said links were provided by the users of its services - all to the detriment of a third party (rights holders).
Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

Yes. (See questions 3 and 39.)

Prevention measures

How may copyright infringement be prevented?

It may be prevented by requesting an injunction by which the alleged infringed is ordered not to carry out specific acts of copyright exploitation. It also may be prevented by the installation of technical protection measures.