Copyright in Mexico

Legislation and enforcement

What is the relevant legislation?

Copyright protection and the copyright legal system in Mexico derives from article 28 of the Federal Constitution. The Federal Copyright Law, which was enacted on 24 December 1996 and took effect as of 24 March 1997, is the main statutory law governing copyright and neighbouring rights. It affords copyright protection, constitutes the Public Copyright Registry and determines the causes of infringement against the copyright. Section 26 of the Federal Criminal Code contains a list of conduct to be considered as crimes against copyright and related rights, and establishes the applicable penalties for the offenders. Other relevant legislation is found in the Industrial Property Law.

This statutory law, which is focused on protecting industrial property rights, is applicable to the copyright field since it governs the proceedings to enforce copyright for conduct in which the alleged infringer obtains direct or indirect profits from the commercial use of a work, which is referred to as a ‘trade-related infringement’.

Who enforces it?

The National Copyright Institute is the competent authority to enforce copyright for cases in which the conduct by the offender is not intended to obtain a profit with the use of a work and in which the infringement relates more to omissions in observing certain obligations foreseen in the Federal Copyright Law. For cases in which the infringement constitutes conduct focused on obtaining direct or indirect profits, the competent authority to take action against the alleged infringer is the Mexican Institute of Industrial Property.

The Office of the Mexican Attorney General is the competent authority to initiate a criminal action for a copyright criminal offence. Civil courts, with either federal or local jurisdiction, will be competent to hear a claim for damages against a copyright infringer. By an order coming from any of the mentioned administrative or judicial authorities, the Mexican Customs can seize illegitimate works at the border to prevent them from entering Mexican territory.

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

In general terms, there are no provisions in the Federal Copyright Law specifically dealing with the unauthorised use of digital works. But from the interpretation of the concepts foreseen in the aforementioned law, there can be causes of action against the unauthorised use, copying, distribution and public communication of digital works.

Article 112 of the Federal Copyright Law contemplates some general anti-circumvention measures by prohibiting the importation, manufacture, distribution or use of devices or the delivery of services that aim to eliminate technical protections of software or decode broadcasting signals. In addition, the Federal Criminal Code considers the unauthorised decoding of satellite signals to be an offence.

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

Mexican law does not have extraterritorial application. The owner of the website infringing copyright must be based in Mexico to support an infringement action under Mexican law.

Is there a centralised copyright agency? What does this agency do?

The National Copyright Institute is the central agency for copyright in Mexico. Among its different activities, it acts as the Public Copyright Registry where authors and copyright owners can register their works and documents to before making them public. Although copyright registration is not required for obtaining copyright protection, this formality proves to be very helpful since it constitutes proof of the existence of the work, and establishes presumption of copyright ownership. This facilitates the performance of commercial actions using the work and facilitates enforcement proceedings against infringers.

Subject matter and scope of copyright

What types of works may be protected by copyright?

The copyright referred to in the Federal Copyright Law is recognised in respect of works in the following categories:

• literary works;
• musical works (lyrics and notes);
• dramatic works;
• dances;
• pictorial works or works of drawing;
• sculptures and works of plastic nature;
• works of caricature and short stories;
• architectural works;
• cinematographic and other audiovisual works;
• radio and television programmes;
• software;
• photographic works;
• works of applied art, including works of graphic or textile design; and
• works of compilation, consisting of collections of works such as encyclopaedias, anthologies and works or other elements such as databases, provided that they constitute intellectual creations by reason of the selection or arrangement of their content or subject matter.

Other works, which by analogy may be considered literary or artistic works, shall be included in the category that most closely corresponds to their nature.

What types of rights are covered by copyright?

Copyright in Mexico covers moral and economic rights.

What may not be protected by copyright?

The Federal Copyright Law expressly excludes the following from copyright protection:

• ideas, formulae, solutions, concepts, methods, systems, principles, discoveries, processes and inventions of any kind;
• the industrial or commercial exploitation of the ideas embodied in works;
• schemes, plans or rules for performing mental acts, playing games or doing business;
• letters, digits or colours in isolation, except where they are stylised to such an extent that they become original designs;
• names and titles or phrases in isolation;
• mere layouts or blank forms for completion with any kind of information, and related instructions;
• unauthorised reproductions or imitations of coats of arms, flags or emblems of any country, state, municipality or equivalent political subdivision, or the names, abbreviated names, symbols or emblems of inter-governmental or non-governmental international organisations, or those of any other officially recognised organisation, and the verbal designation thereof;
• legislative, regulatory, administrative or judicial texts, and official translations thereof; where they are published, they must conform to the official text, and they shall confer no exclusive right of publication; nevertheless, protection shall be available for parallel texts, interpretations, comparative studies, annotations, commentaries and other similar works that entail on the part of their author, the creation of an original work;
• the information content of news, whereas the form of expression thereof is protected; and
• information in everyday use, such as proverbs, sayings, legends, facts, calendars and scales of measurement.

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

The Federal Copyright Law foresees certain limitations to the exercise of economic copyright through which fair use situations are foreseen for certain conduct. These exceptions are based on the ‘three-step test’ of the Berne Convention for the Protection of Artistic and Literary Works. In this connection, artistic and literary works in Mexico may freely be used, without an authorisation from the owner of the economic rights, provided that the use does not affect the normal use of the work, in the following cases:

• text quotation, provided that the quoted portion is not a simulated reproduction of the complete work;
• reproduction of texts, photographs, drawings and comments related to present events that have been published on printed news or broadcasted by any media, except if the reproduction has expressly been prohibited by the copyright owner;
• partial reproduction of the work for criticism or for scientific, literary or artistic research;
• reproduction of works for a private use and without looking forward to obtain a profit (only applicable for individuals);
• backup copies of a work made by an archive or library for preservation purposes;
• reproduction of works for judicial or administrative proceedings;
• reproduction communication and distribution of paintings, photographs, drawings or audiovisual materials containing works that are viewable in public places; and
• publication of works without a lucrative purpose for persons with disabilities.

Are architectural works protected by copyright? How?

Architectural works are protected by copyright on the same basis as other artistic or literary works. Protection extends to the architectural plans.

As part of the fair use of works, architectural works that are visible from public places can be reproduced, communicated and distributed in drawings, paintings, photographs and audiovisual materials, without the consent of the copyright owner and without remuneration.

Are performance rights covered by copyright? How?

Performance rights are protected by copyright in Mexico for actors or performing artists for their public performances.

The law grants actors and performing artists ‘neighbouring rights’, which afford them the right to be recognised with their names in their respective performances and provide them with the ability to: authorise or oppose the public communication of his or her performances; authorise or oppose the fixation of their performances and further reproduction thereof; and authorise or oppose any alteration to a performance in a manner that affects his or her prestige or reputation.

The mentioned rights are extinguished if an authorisation to the fixation of the performance exists, provided that the titleholder of the resulting material support has fulfilled the payments as agreed with the actor or performing artist in question.

Aside from the above capabilities, actors and performing artists have the right to receive royalties for the public communication of their performances. This right can be exercised directly by the concerned individual or through a collective management organisation empowered to represent an actor’s or a performing artist’s interests.

The rights of actors and performers last for 75 years from the first performance; the first fixation of the performance in a phonogram, if the performance can be recorded; and the first broadcasting of the performance in any available media.

Are other ‘neighbouring rights’ recognised? How?

In addition to the performance rights, the Federal Copyright Law recognises protection through neighbouring rights to the following:

• book publishers;
• producers of phonograms;
• producers of videograms; and
• broadcasting organisations.

The protection provided in no way affects the protection of the copyright in literary and artistic works.

In Mexico, there is sui generis protection under the Federal Copyright Law called ‘reservation of rights’, which grants to its holder the right to use on an exclusive basis any of the following:

• names of serial publications;
• names of TV, radio or internet websites;
• original characteristics (physical and psychological) of characters;
• artistic names; and
• original advertisement mechanisms.

This protection is constituted by obtaining a reservation of rights certificate from the National Copyright Institute and is similar to trademark protection. The names, characters or mechanisms must not be identical or confusingly similar with others that were previously ‘reserved’ on behalf of other people.

Are moral rights recognised?

The Federal Copyright Law recognises moral rights to be an expression of the author’s personality. Moral rights are a set of rights or prerogatives related to the honour, prestige and reputation of the author and they are mainly focused on protecting the authorship and the integrity of the work.

According to the Federal Copyright Law, the author of any work has the following moral rights:

• to determine the method of disclosure and whether their work should be disclosed or remain undisclosed (right of publication);
• to demand the recognition of its authorship and to order publication as an anonymous or pseudonymous work (right of paternity);
• to demand respect for its work, opposing any deformation or modification, as well as any action or attempt that causes demerit or prejudice to the author’s reputation (right of integrity);
• to modify their work (right of paternity);
• to withdraw its work from circulation (retirement right); and
• to oppose any attribution of a work that he or she did not create.

Moral rights in Mexico:

• are perpetual;
• are inalienable;
• are irrevocable; and
• cannot be waived.

The author is the sole, original and perpetual owner of the moral rights of his or her works. An author cannot assign moral rights, because moral rights are closely linked to the author of a work and protect the author’s reputation.

Copyright formalities

Is there a requirement of copyright notice?

According to article 17 of the Federal Copyright Law, all works to be published must display a copyright notice with the following information:

• the initials ‘DR’ or the indication ‘Derechos Reservados’;
• the copyright symbol ‘©’;
• the name and address of the copyright owner; and
• the year of first publication.

What are the consequences for failure to use a copyright notice?

Failure to display a copyright notice does not imply loss of copyright or the inability to enforce actions against infringers. However, in the event that a published work does not include the copyright notice, this action is considered a copyright infringement and the National Copyright Institute can fine the publisher an amount equivalent from 5,000 up to 15,000 UMAs.

The UMA (translated in English as ‘unit of measure and update’) substitutes references in Mexican federal and local laws made in connection to the daily minimum wage in Mexico City, which was previously taken as the economic value to calculate fines and other economic obligations foreseen in them. For 2019, one UMA is equivalent to 84.49 Mexican pesos.

Is there a requirement of copyright deposit?

The Federal Copyright Law does not require a deposit of works as a condition to achieve or maintain copyright protection, or to avoid the imposition of a fine for not performing this action. It is possible though to register a literary or an artistic work before the National Copyright Institute and for this it is necessary to file copies of the work. To obtain the registration from the mentioned institute, it is necessary to file copies of the work. There are also other documents and information that have to be filed to obtain the registration. The filing of the work confirms in a public registry the existence of the work in case this is required at any time by the author or copyright owner.

What are the consequences for failure to make a copyright deposit?

As indicated in the previous question, a deposit of works is not contemplated in Mexican law.

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

Yes. Although not mandatory, it is highly recommended. The National Copyright Institute is the Mexican authority in charge of the Copyright Public Registry. See question 19.

In order to obtain a copyright registration for a work in Mexico from the National Copyright Institute, a written application based on an official format has to be filed, complying with certain formal requirements and documents.

Is copyright registration mandatory?

Mexico follows the international trend of copyright protection. The Berne Convention for the Protection of Artistic and Literary Works is in force in our country and the provisions of this international treaty are incorporated into our national legislation. Therefore, artistic or literary works are protected at the time they are fixed into a material form and a copyright registration, in theory, is not necessary to achieve copyright protection.

What are the fees to apply for a copyright registration?

Government fees charged by the National Copyright Institute for a copyright registration of an artistic or literary work are the equivalent of approximately US$20.

What are the consequences for failure to register a copyrighted work?

Not obtaining copyright registration for a literary or artistic work should have no negative impact for the work or for the copyright owner, since as indicated in the former questions, copyright protection is achieved at the very same time the work is fixed into a material form. In practice, however, obtaining copyright registration from the National Copyright Institute is highly advisable. The certificate of copyright registration issued by the National Copyright Institute is an official document that establishes proof of existence of the work and a presumption about the copyright ownership on behalf of the registrant. It facilitates the exercise of commercial actions with the registered work and helps to expedite the initiation of enforcement proceedings before the Mexican Institute of Industrial Property or the Office of the Mexican Attorney General (depending on whether the action is of an administrative or criminal nature).

Ownership and transfer

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.

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).

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.

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.

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.

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).

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.

Duration of copyright

When does copyright protection begin?

Artistic or literary works are protected from the point of fixation of the work and copyright registration. However, in theory, this is not strictly necessary to achieve copyright protection. Nevertheless, under Mexican practices, the registration of a work with the National Copyright Institute is an action necessary to support the existence of the work and the ownership of the economic copyright on behalf of the copyright owner.

How long does copyright protection last?

Moral copyright belongs to the author perpetually (see question 13) and economic copyright is in force, as a general rule, for the life of the author plus 100 years. When a copyright work belongs to two or more co-authors, the 100 years shall be counted as from the death of the last co-author.

Does copyright duration depend on when a particular work was created or published?

Copyright protection starts at the moment a work has been fixed in a material form. As mentioned in question 35, as a general rule, the economic copyright is in force for the life of the author plus 100 years. However, when the author is not identified, as in anonymous or pseudonymous works and also for posthumous works, the duration of copyright protection does depend on when the work was published on the basis of 100 years from the disclosure or publication of the work.

Do terms of copyright have to be renewed? How?

Copyrights in Mexico do not need to be renewed.

Has your jurisdiction extended the term of copyright protection?

The term of copyright protection in Mexico has been extended many times. Pursuant to the last amendment of the Federal Copyright Law on 23 July 2003, the economic copyright protection term has been extended from 75 years to 100 years after author’s death, as described in question 33.

Copyright infringement and remedies

What constitutes copyright infringement?

Copyright infringements are divided into two categories. In the first category are copyright infringements that contravene the regulations established in the Federal Copyright Law. In the second category are trade-related infringements that occur when there is a violation in a trade or commercial scale, mainly to the economic copyright, and that, by nature, requires highly specialised treatment. Copyright infringements, due to their eminently administrative nature, are attended to by the National Copyright Institute. Trade-related infringements will be attended to by the Mexican Institute of Industrial Property.

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

In Mexico, the Federal Copyright Law does not foresee secondary liability for indirect copyright infringement. However, article 231 of the Federal Copyright Law establishes that trade-related infringements are constituted by conduct carried out in order to obtain direct or indirect profit. Activity that results in an advantage or additional attraction to the main activity of the operator in a commercial establishment is considered to have an indirect profit purpose.

What remedies are available against a copyright infringer?

Remedies against a copyright infringer are also divided into two categories.

Copyright infringements are penalised by the National Copyright Institute. The Federal Copyright Law establishes a fine ranging from 5,000 up to 15,000 UMAs. An additional fine of up to 500 UMAs will be applied for every day that the infringement persists.

The trade-related infringements are punished by the Mexican Institute of Industrial Property with a fine ranging from 500 up to 10,000 UMAs. An additional fine of up to 500 UMAs will be applied for every day that the infringement persists.

Is there a time limit for seeking remedies?

Yes. An infringement action has to be filed within five years of knowledge of the infringement or the time that it ceased if, due to the nature of the illegal conduct, it is repetitive or it extends over the time limit. In the case of a criminal action, the term to initiate proceedings is three to five years, depending on the type of violation committed by the offender. Regarding a civil action to claim damages for a copyright violation, it has to be filed within two years of the date the infringement occurred.

Are monetary damages available for copyright infringement?

Yes, the Federal Copyright Law establishes the possibility of seeking monetary damages. In no case should the indemnification of economic or moral damages be less than 40 per cent of the sale price of the product or service upon which the infringement was declared. Monetary damages should be claimed through a civil law action.

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

Yes, both the attorneys’ fees and costs can be claimed. However, such claim should also be sought through a civil law action separately from the copyright infringement procedure.

Are there criminal copyright provisions? What are they?

Yes, Chapter 26 of the Federal Criminal Code contains a catalogue of conduct considered copyright offences. This catalogue also establishes the penalties applicable to the offender, which can be imprisonment from six months to three years and fines from 300 to 30,000 UMAs, which are imposed based on the kind of violation and the circumstances of the case. In general terms, a copyright offence implies the unauthorised and wilful use, storage, marketing, distribution or communication of a copyrighted work, with an aim to make a direct or indirect profit by the offender. There are also other forms of conduct in the field of the copyright and neighbouring rights to be considered as a criminal offences, such as the use without authorisation of performances, the use of mechanisms to decode satellite signals with copyrighted contents, and in the field of moral rights, the wilful substitution of the name of an author for a published work.

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

No, they are the same for all forms of copyright infringement.

How may copyright infringement be prevented?

It is advisable to implement the following:

• use of a copyright notice as is foreseen in the Federal Copyright Law (see question 14);
• obtention of a copyright registration for the work;
• implementation of technological protection measures for digital works;
• monitoring the market to try to find illegitimate copies of works; and
• remittance of a cease-and-desist letter to the alleged infringer, pointing out the existence of protection and copyright registration regarding the allegedly infringed work.

Relationship to foreign rights

Which international copyright conventions does your country belong to?

Mexico is a member of:

• the Literary and Artistic Property Convention (the Buenos Aires Convention);
• the Inter-American Convention on the Rights of the Author in Literary, Scientific and Artistic Works;
• the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention);
• the Universal Copyright Convention;
• the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;
• the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms;
• the trade-related aspects of Intellectual Property Rights;
• the World Intellectual Property Organization Copyright Treaty (WCT);
• the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT);
• the Treaty on the International Registration of Audiovisual Works;
• the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled; and
• various bilateral copyright treaties.

What obligations are imposed by your country’s membership of international copyright conventions?

The most important obligation, mainly derived from the Berne Convention, is the recognition of an automatic copyright protection through the fixation of works and without having to comply with additional formalities for this purpose. A regime of limitations and exceptions to the exercise of the copyright is also implemented, based on the three-step rule foreseen in the Berne Convention.

On the other hand, our copyright legal system by virtue of the commitments in the international conventions adopted by Mexico provides for national treatment for authors of other countries, who are granted with the same level of protection as if they were Mexican citizens. Artists, performers and producers of works are afforded protective rights over their collaborations and materials pursuant to the provisions of the different treaties in matters of the neighbouring rights Mexico is a party to.

Based on the World Intellectual Property Organization treaties (WCT and WPPT), Mexico has an obligation to protect authors and works which are in use or whose distribution, marketing or communication is made over the internet or through the use of digital formats and to implement the adoption of adequate anti-circumvention measures.