Copyright infringement and remedies

Infringing acts

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.

Vicarious and contributory liability

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.

Available remedies

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.

Limitation period

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.

Monetary damages

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.

Attorneys’ fees and costs

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.

Criminal enforcement

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.

Online infringement

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

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

Prevention measures

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.