This article first appeared in the September/October issue of the World IP Review
The Mexican Copyright Law (MCL) recognises moral and patrimonial rights for the author of a work that is protected under the provisions of its Article 13. Moral rights are those that are inherent to the author, which cannot be transmitted and are basically referred to as the paternity of the work, while the patrimonial or economic rights are those that entitle the author to receive economical privileges for the exploitation, use or communication of the work.
Within the economic rights, the author has the right to realise royalties for the public communication or broadcasting of their work by any means, including, but not limited to, cable or satellite TV. Article 26 bis of the MCL expressly sets forth that “The author and his beneficiaries shall have the right to royalties for the public transmission or communication of his work by any means. The right of the author to perceive royalties is not susceptible to be waived…”.
Articles 8 and 9 of the MCL regulations further define royalties as any financial payment for the use of original work, performance, phonogram, videogram, book or emission in any mode or media. It also establishes that the payment of such royalties to the author, to the owners of the neighbouring rights or to the beneficiaries shall be made in an independent manner to each of those who have rights in accordance with the exploitation mode.
In this regard, in January 2006, the Mexican Supreme Court of Justice (SCJN) ruled that the transmission of patrimonial rights does not mean that the author loses his rights to receive a royalty for the public exploitation of his work.
Later on, in December 2007, the SCJN issued a criteria establishing that the provisions of Article 26 bis of the MCL related to the prohibition to waive the right to perceive royalties should not be understood as the prohibition for the author to transmit such right in life to any third person, and in consequence, it needs to be understood that the author has the right to alienate his right to perceive royalties for the public communication of his work, any time that he executes a legal act in which he expresses his will in an indubitable manner.
Furthermore, the SCJN made a distinction between the royalties of the Article 26 bis of the MCL and the royalties to which Articles 8 and 9 of the MCL regulations refer, establishing that: the right to perceive royalties provided in Article 26 bis is an economical incentive that is constituted by a percentage charged to the person who realises the public communication or transmission of the work; while the royalties set forth in Articles 8 and 9 of the MCL regulations should be understood as a payment in accordance with the corresponding contract that the acquirer of the exploitation right pays to the author as a part of the price for the transmission of such right established in the corresponding contract.
Finally, the SCJN clarifies the provision related to “the author and his beneficiaries” in Article 26 bis, establishing that such provision shall not be construed as a provision that permits both the author and his beneficiary to collect royalties for the same public transmission or communication of the work.
Fair and congruent criteria
The 2007 criteria established by the SCJN are both fair and congruent with the spirit of the MCL and the principles of copyright. In addition to establishing rules that the copyright holder can easily understand, the rules are very convenient for the entertainment industry, including, but not limited to, the economic benefits at the moment of purchase use, communication, distribution or any other exploitation right.