Copyright infringement and remedies

Infringing 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.

Injunctions

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.

Damages

The court may sentence the infringer to pay damages.

Additional penalties

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.

Publication

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.

Criminal actions

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?

Unauthorised use

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.

Counterfeiting

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.

Piracy

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.

Public domain

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.

Repeat offenders

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.