Legislation and enforcementRelevant legislation
What is the relevant legislation?
The relevant legislation is Law No. 17,336 on Intellectual Property (the Law). Among other matters, the Law regulates the nature, duration, ownership and exceptions of copyrighted works and permitted acts in relation to such works, including moral rights, and provides for:
- civil remedies and criminal offences for copyright infringement;
- neighbouring rights of artists, interpreters and performers of phonogram producers and broadcasters; and
- limitation of liability of collective copyright organisations and internet service providers.
Who enforces it?
Civil and criminal courts are in charge of copyright enforcement, depending on the nature of the infringement.Online and digital regulation
Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?
The digital exploitation of copyrighted works is not addressed in a separate section but throughout the Law. For example, when dealing with exceptions and limitations, infringements, digital rights management information violations, and internet service providers’ limitation of liability.Extraterritorial application
Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?
There is no special rule in the Law dealing with foreign-owned or foreign-operated websites that infringe copyright, therefore general rules are applied. The Law covers the rights of all Chilean authors, performers, producers of phonograms, and Chilean and foreign broadcasting organisations domiciled in Chile. The rights of foreign authors, performers, producers of phonograms and broadcasting organisations who or which are not domiciled in the country shall enjoy the protection afforded under the international conventions that Chile has signed and ratified (eg, the Universal Copyright Convention, the Berne Convention, the Rome Convention, and the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement; see question 46).Agency
Is there a centralised copyright agency? What does this agency do?
There is a copyright agency called the Department of Intellectual Rights, which has fairly limited competencies. It is mainly limited to managing the Intellectual Property Registry, which is a public registry where copyright and neighbouring rights are recorded, in addition to the assignment of said rights.
Subject matter and scope of copyrightProtectable works
What types of works may be protected by copyright?
The Law protects the rights that the authors of intellectual works in the literary, artistic and scientific domains acquire through the sole fact of their creation, whatever their form of expression, and the neighbouring rights it establishes.
The following, among others, are especially protected:
- books, brochures, articles and written documents, whatever their form and nature, including encyclopaedias, guidebooks, dictionaries, anthologies and compilations of all kinds;
- conferences, speeches, lectures, memoirs, comments and works of the same kind, both in their oral as well as in their written or recorded versions;
- dramatic, dramatic-musical and theatrical works in general, and likewise choreographic and pantomimic works, whose development has been set down in writing or in another form;
- musical compositions, with or without lyrics;
- radio or television adaptations of any literary production, works originally produced by radio or television, and the corresponding librettos and scripts;
- newspapers, magazines or other publications of the same kind;
- photographs, engravings and lithography;
- cinematographic works;
- architectural projects, sketches, models and mapping systems;
- geographical or armillary spheres, as well as plastic works related to geography, topography or any other science and, in general, audiovisual material;
- paintings, drawings, illustrations and similar works;
- sculptures and similar figurative works of art, even though they may be applied to industrial uses, provided their art value may be assessed separately from the industrial character of the object to which they are incorporated;
- scenographic sketches and the respective sceneries, if the author is the sketch artist;
- adaptations, translations and other transformations, if they have been authorised by the author of the original work if it does not belong to the public domain;
- videograms and slide shows;
- computer programs, whatever their mode or form of expression, and source programs or object programs, including their preparatory documents, technical descriptions and user manuals;
- data collection or collection of other materials, in typewritten form or any other form, which, due to the selection or disposition of their contents, constitute creations of an intellectual nature. (This protection does not include the data or materials themselves, and is to be understood as notwithstanding any subsisting copyright in connection with the data or material included in the collection); and
- textile designs or models.
What types of rights are covered by copyright?
Copyright comprises patrimonial and moral rights, which protect the use, authorship and integrity of the work.
The author, as the exclusive holder of the moral right, has the following powers for life:
- to claim the authorship of the work, associating it with his or her name or known pseudonym;
- to oppose any deformation, mutilation or any other modification performed without his or her express and previous consent. Works of preservation, reconstitution or restoration of works that have suffered damages that may alter or reduce their artistic value will not be considered as such;
- to maintain the work unpublished;
- to authorise third parties to finish the unfinished work, with the prior consent of the publisher or assignee, if any; and
- to demand that his or her wish that the creator of the work remains anonymous or pseudonymous be respected, provided the work does not belong to the public domain.
The copyright holder, or whoever is expressly authorised by him or her, will be entitled to use the work in any of the following forms:
- to publish (ie, a public offer of a work) by editing, recording or broadcasting it on radio or television, performing, executing, reading, reciting, exhibiting and, generally, through any other public communication means that is currently known or may be known in the future;
- to reproduce it through any process;
- to adapt it to another genre, or to use it in any other way implying a variation, adaptation or transformation of the original work, including its translation;
- to perform it publicly by means of radio or television broadcasting, phonographic records, cinematographic films, tape recordings or any other material support that may be used on sound and voice reproduction apparatus, with or without images, or through any other means; and
- to distribute tangible copies to the public by means of its sale, or any other property transfer of the original work or the copies that have not been the object of a sale or any other property transfer authorised by him or her or pursuant to this law.
What may not be protected by copyright?
The following are excluded from the Law’s scope of protection.
Ideas without formal expression
Generally, although it is not expressly indicated in the Law, said rule stems from international treaties ratified by Chile, the essential regulations of which are incorporated into domestic laws (see questions 46 and 47). Thus, in accordance with article 2 of the World Intellectual Property Organization (WIPO) Copyright Treaty, copyright protection includes expressions but not ideas, procedures, operating methods or mathematical concepts themselves.
Works in the public domain
Public domain works (eg, works of folk heritage by unknown authors, such as songs, legends and dances) may be used by anyone, provided the work’s authorship and integrity are respected (moral rights).
Public domain works include:
- works where the protection term has expired;
- the work of an unknown author;
- works whose holders have disclaimed protection;
- works by foreign authors who live outside the country and are not protected by international treaties ratified by Chile; and
- works that have been expropriated by the state, unless the Law specifies a beneficiary.
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?
In Chile, there are no fair use nor fair dealing doctrines, but a similar exception to the doctrine of fair use was introduced by the 2010 copyright amendment. This exception allows the incidental and exceptional use of copyrighted works for the purpose of criticism, commentary, caricature, teaching, academic interest or research, as long as such use does not constitute a covert exploitation of the work. This exception is not applicable to audiovisual works of a documentary nature.Architectural works
Are architectural works protected by copyright? How?
The Law provides that such works are protected by copyright, but includes a series of exceptions related to these kinds of works. Thus, their reproduction and publication are permitted by means of photography, cinema, television and any other similar procedure, without the copyright holder’s previous authorisation and without having to pay for it. The owner may make any modification to the works, and the architect may only oppose his or her name being mentioned as author of such a project.Performance rights
Are performance rights covered by copyright? How?
The Law acknowledges a series of neighbouring rights to copyright to artists, interpreters and performers (ie, actors, singers, dancers and musicians, among others), empowering them to authorise or forbid broadcasting of a work in which they feature, and to receive payment for the work’s public use, notwithstanding copyright.
With regard to the interpretations and performances of artists, the following acts are prohibited without their express authorisation, or that of their heirs or assignees:
- the recording, reproduction, transmission or retransmission by broadcasting or television companies, or the use by any other means, for profit, of said interpretations or performances;
- non-established interpretations or performances being recorded in a phonogram and the reproduction of said recordings;
- broadcasting through wireless media or public communication of their live interpretations or performances; and
- public distribution through sale or any other property transfer of the original or copies of their interpretation or performance that have not been the object of a sale or other property transfer authorised by the artist, or his or her assignee, in accordance with this Law.
Are other ‘neighbouring rights’ recognised? How?
Together with the neighbouring rights of artists, interpreters and performers over their interpretations and performances, the Law acknowledges neighbouring rights to phonogram producers and to broadcasters.
Phonogram producers are entitled to authorise or prohibit the reproduction, renting, loan and other uses of their phonograms, including their broadcasting through wireless media or on-demand modalities. With regard to broadcasters, radio and television companies have the exclusive right to authorise or prohibit the recording of their broadcasts and their reproduction, and also the right to fees for the retransmission of said broadcasts or their public communication in places of free access.
Likewise, broadcasters may perform ephemeral recordings of interpretations or performances of an artist to simplify their transmission, which constitutes a right, from the point of view of the broadcaster, and from the point of view of the artist, of an exception to, or limitation of, his or her exclusive right to authorise the reproduction of his or her interpretation or performance.Moral rights
Are moral rights recognised?
See question 7.
Is there a requirement of copyright notice?
A copyright notice is not a requirement for copyright holders to enjoy protection. As stated in question 6, copyright holders enjoy protection by the mere fact of having created the work.
What are the consequences for failure to use a copyright notice?
As previously stated, copyright notice is not a requirement for copyright protection. Nevertheless, if the copyright notice is not displayed, the copyright holder will not qualify for the copyright presumption granted by the Law when the copyright notice is used. (See question 18.)Deposit
Is there a requirement of copyright deposit?
No, the deposit of a copy of the work is not necessary for the rights holders to enjoy the protection assigned by the Law. However, it is a requirement for the recording of the work, exclusively for the purposes stated in question 18.
What are the consequences for failure to make a copyright deposit?
The Department of Intellectual Property Rights will not process the registration according to the terms indicated in question 18.Registration
Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?
There is a registration system managed by the Department of Intellectual Property Rights where copyright and neighbouring rights can be registered. Registration is performed by supplying a deposit copy of the work without involving third parties - there are no publication requirements or opposition proceedings. The function of the deposit is an essentially probative one and administrative acknowledgement of the fact of creation.
Notwithstanding the aforesaid, the registration administrator, who is the head of the Department of Intellectual Property Rights, may oppose the registration of a work when, due to its nature, it is not, in the administrator’s opinion, within the framework of the works protected by copyright, notwithstanding the right of the affected party to file a claim before the competent civil court.
Is copyright registration mandatory?
Copyright registration is not mandatory. However, a work’s registration establishes a presumption of ownership of the rights with respect to the person to whom, according to the respective registration, the copy being registered belongs; it is therefore advisable to register a work and to make reference to the number assigned by the Department of Intellectual Property Rights when making the work known to the public.
What are the fees to apply for a copyright registration?
The registration of a work is subject to the payment of a fee calculated in percentages of a monthly tax unit (UTM), which is an accounting unit used for tax payments and certain administrative fines, the value of which is updated according to inflation levels. Its value, to date, is about US$74. The following fees are applied according to each work:
- engineering and architecture projects and computer programs: 35 per cent UTM (approximately US$26);
- cinematographic films: 40 per cent UTM (approximately US$28); and
- any other registration: 10 per cent UTM (approximately US$8).
What are the consequences for failure to register a copyrighted work?
Failure to register a copyrighted work does not deprive the holder of the acknowledgement of his or her rights.
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.
Duration of copyrightProtection start date
When does copyright protection begin?
As previously stated, the protection assigned by copyright begins with the sole fact of the work’s creation. There are special rules concerning computer programs and related rights of phonogram producers, and also those of artists and interpreters, which will be analysed in question 34.Duration
How long does copyright protection last?
The protection granted by the Law lasts for the life of the author and extends for 70 years from the date of his or her death. In the case of works in collaboration, the term of 70 years is to be counted from the death of the last co-author.
With respect to the following works, certain special rules have been established regarding the beginning of the terms of duration of the protection:
- anonymous or pseudonymous works: 70 years from the first publication and in the event of there being no such publication, within a term of 50 years from its creation (the terms begin at the end of the civil year in which the work was created);
- computer programs: if the holder is a legal entity, the protection lasts 70 years as of the first publication;
- phonograms: 70 years starting from 31 December of the year of its publication, and should there be no such publication, within a term of 50 years since its recording; the protection is for 70 years following the end of the civil year of its recording;
- recorded interpretations and performances: 70 years from its publication, and should there be no such publication within 50 years since its recording, the protection will be for 70 years following the end of the civil year of its recording;
- non-recorded interpretations and performances: 70 years from the date of said performance; and
- radio and television broadcasts: 50 years from 31 December on the year of the broadcast.
Does copyright duration depend on when a particular work was created or published?
Duration rules are very straightforward without transitory rules to apply. Any extension of time applies automatically to copyright works that are not already in the public domain.Renewal
Do terms of copyright have to be renewed? How?
No.Government extension of protection term
Has your jurisdiction extended the term of copyright protection?
Yes. In 2003, the Law was amended to increase the term of protection from life plus 50 years to life plus 70 years; in all other cases, protection has changed from 50 years to 70 years.
Copyright infringement and remediesInfringing acts
What constitutes copyright infringement?
Copyright infringement is the public use of a work belonging to the private domain, without having obtained the express authorisation of the copyright holder, giving rise to civil liability and, in certain cases, criminal liability. Infringement may likewise be, in certain cases, the use of works belonging to the public domain, whenever they are published or exhibited under a name that is not that of the real author.Vicarious and contributory liability
Does secondary liability exist for indirect copyright infringement? What actions incur such liability?
There is no secondary liability, but the 2010 copyright amendment introduced a new chapter to the Law, by which internet service providers will not be obliged to compensate the damage derived from third-party copyright infringements committed through systems or networks controlled or operated by a service provider, provided that the service provider complies with the specific conditions requested (internet service providers may only be subject to the remedies established in the Law, which in all cases will require a previous resolution issued by a court); and internet service providers must forward to their users the infringement notices sent by copyright holders (forward of infringement notice system). Service providers fulfil their obligation by simply forwarding infringement notices, without being compelled to take content down or being authorised to provide their users’ personal data to copyright holders without a court resolution.
This system establishes requirements that infringement notices of copyright holders must comply with to guarantee that they are sent by responsible entities, with representation in Chile. In this way, the new provision deprives legal validity of infringement notices sent automatically from different parts of the world.Available remedies
What remedies are available against a copyright infringer?
Within the framework of proceedings for copyright infringement, the court may, at the plaintiff’s request, decree one of the following measures.
The court may, at any stage during the proceedings, order the following injunctions:
- immediately suspend the sale, circulation, display, performance, representation or any other form of allegedly infringing exploitation;
- prohibit executing or performing any acts and contracts on certain properties, including the prohibition to advertise or promote the products or services that are the subject matter of the alleged infringement;
- retain allegedly unlawful copies;
- retain or seize any materials, machinery and implements that have been used for the production of allegedly unlawful copies or for the allegedly infringing activity, where necessary to prevent further infringement;
- remove or dispose of any devices used in the unauthorised public communication, unless the alleged infringer guarantees that he or she shall not resume the infringing activity;
- appoint one or more inspectors; or
- attach the product of recitation, representation, reproduction or performance, until reaching such applicable copyright amount as reasonably established by the court.
The court may sentence the infringer to pay damages.
The court, upon making effective the payment for damages, may order, at the request of the affected party, the delivery, sale or destruction of the copies of the work that have been manufactured or put into circulation infringing his or her rights, and likewise that of the material that serves exclusively for the illegal manufacture of copies of the work and the seizure of the product of the recitation, representation, reproduction or performance.
The court may order, at the request of the affected party, the publication of the decision, with or without stating the grounds for it, in a newspaper of the affected party’s choice, at the expense of the infringer.
Copyright infringement can also be pursued with criminal actions being sanctioned with imprisonment and fines.Limitation period
Is there a time limit for seeking remedies?
The exercise of the respective actions prescribes, according to general proceedings rules, a five year time limit, in the case of civil action for damages.
The exercise of the criminal action (see question 42), according to the penalty established for copyright crimes, prescribes a five-year time limit in the case of simple offences (the majority of cases) and 10 years in the case of crimes (only with respect to fraud committed in connection with the publishing contract).Monetary damages
Are monetary damages available for copyright infringement?
Yes, there are monetary damages available for copyright infringement, including statutory damages introduced by the 2010 copyright amendment. In determining property damages, the court shall consider, among other factors, the legitimate retail value of the goods that are the subject matter of the infringement. The court may, likewise, order the infringer to pay any profits that are attributable to the infringement and not already taken into account in determining the damages. In addition to property damage, the court may impose moral damages and, in these cases, the court shall consider the circumstances of the infringement, the gravity of the injury, the impairment caused to the author’s reputation and the extent to which the work has been unlawfully made available, from an objective point of view.Attorneys’ fees and costs
Can attorneys’ fees and costs be claimed in an action for copyright infringement?
If the defendant is convicted, he or she must pay the costs, both of the process (court costs) and personal costs (lawyers’ fees), pursuant to general rules. The court may exempt him or her from said payment by means of a substantiated resolution. If the defendant is not convicted, the court may require the defeated party to pay the costs.Criminal enforcement
Are there criminal copyright provisions? What are they?
A fault or offence is committed against intellectual property by any person who, without being expressly empowered for such purpose, uses somebody else’s works protected by the Law, either unpublished or published, or uses the protected performances, productions and broadcasts of the holders of related rights. Periods of imprisonment and fines (or both) will vary depending on the range of damages, from one day to 540 days and from US$368 to US$74,000.
Any person who forges a work protected by the Law, or whoever edits, reproduces or distributes it by falsely showing the name of the authorised editor, by deleting or changing the name of the author or the title of the work, or by maliciously altering its text, shall be subject to imprisonment from 61 days to 540 days and fines of US$740 to US$74,000.
Any person who, for profit, manufactures, imports, brings into the country, has or acquires for their commercial distribution illegal copies of copyright material, shall be subject to imprisonment from 541 days to five years and fines of US$7,400 to US$74,000.
Anyone who knowingly reproduces, distributes, makes available or communicates to the public a work belonging to the public domain or to the common cultural heritage under a name which is not that of the true author, shall be subject to fines of US$1,900 to US$37,000.
In cases of repeat offenders, the maximum penalties contemplated for each of the offences shall apply. In these cases, the fine may not be lower than twice the prior fine, and for an amount of up to US$148,000. Additional penalties are applied when the infringements are committed by people who are part of an association or group of persons engaged in committing such offences.Online infringement
Are there any specific liabilities, remedies or defences for online copyright infringement?
See question 38 for internet service providers’ limitation of liability.
On remedies and defences for online copyright infringements, the Law sets forth special preliminary and permanent injunctions.
Regarding the functions of transmission, routing or supply, the court may order the adoption of reasonable measures to disable access to particular illegal content clearly identified by the petitioner, provided that the blocking does not disable access to other legal content.
Regarding the functions of caching carried out through an automatic process, storage at the direction of a user of material residing on a system or network controlled or operated by or for a provider, or referring or linking users to an online location by using information location tools (including hyperlinks and directories), the court may order the removal or disabling of access to the infringing material clearly identified by the petitioner; and the terminating of specified accounts of repeat infringers, clearly identified by the petitioner, whose holders are using the system or network to perform an activity infringing copyright and related rights.
When the injunctions are requested before the lawsuit is served (pre-judicial) and when there are serious motives for it, the injunctions may be ordered by the court without hearing the other party but, in this case, the petitioner must post a bond to secure the outcome of the injunction. The court will order the removal or disabling of the infringing content without further delay. The respective service provider will be notified of the resolution by letter and the petitioner will be notified through a public publication board at the court. The affected content provider may, notwithstanding other rights, request that the court issuing the order disregard the measure of restraining access or removing the material.Prevention measures
How may copyright infringement be prevented?
It is not possible to prevent copyright infringement, but the following measures may be taken to diminish or control infringement:
- clearly identifying in the works the author or copyright holder who enjoys said presumption;
- recording the works in the Intellectual Property Registry to facilitate the evidence in cases of infringements; and
- monitoring the market and being prepared to deliver a strong message to the market to the infringers, using and filing all available remedies against them.
Relationship to foreign rightsInternational conventions
Which international copyright conventions does your country belong to?
The principal international treaties ratified by Chile regarding intellectual property matters are the Berne Convention, the TRIPS Agreement, and the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty (the WIPO Treaties).
On 4 February 2016, Chile signed the Trans-Pacific Partnership Agreement (TPP), which had a particular chapter dedicated to intellectual property, but it was not ratified by its signatories. In January 2018, Chile signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). It became active on 30 December 2018, but Chile has not yet ratified this agreement.
What obligations are imposed by your country’s membership of international copyright conventions?
The Berne Convention sets a basic framework for the protection of copyright ownership, which must be considered by member states, and also the suggestion of a regime of copyright exceptions and limitations, principally based on the three-step rule, with respect to reproduction rights.
The TRIPS Agreement sets an updated framework of copyright protection according to the standards established for the states that become members of the World Trade Organization. Thus, for instance, it is expressly established that computer programs, both expressed in source code and in object code, will be protected by copyright (a situation that continued to be a matter for debate at the beginning of the 1990s).
The WIPO Treaties establish requirements for protection of the works, interpretations, performances and phonograms protected by copyright and neighbouring rights, in the digital and online environment, regulating for the first time the level of protection that must be provided not only to the works, but also to the technological measures of protection and digital rights management information with which the holders have endowed their works to limit their access and reproduction, and also to control their use.
Finally, Chile has signed several free trade agreements that have strengthened, to a certain point, the commitment of the country to adapting copyright regulations concerning the aforesaid matters.