1 Copyright Subsistence
1.1 What are the requirements for copyright to subsist in a work?
In terms of the Mexican Copyright Law ("MCL"), the sole requirement for a work to subsist is that it is fixed in a tangible medium of expression.
1.2 Does your jurisdiction operate an open or closed list of works that can qualify for copyright protection?
In Mexican legislation, article 13 of the MCL establishes a closed list of works.
1.3 In what works can copyright subsist?
According to the aforementioned section 13 of the MCL, the works may be:
- musical works with or without lyrics;
- pictorial or drawing;
- sculptural and plastic;
- cartoon and comic books;
- film and other audiovisual works;
- radio and television programs;
- computer programs;
- works of applied art that include graphic or textile design; or
- compilation, consisting of collections of works, such as encyclopaedias, anthologies and databases.
1.4 Are there any works which are excluded from copyright protection?
In Mexican legislation, all works fall within the provisions of copyright, however, the scope of protection may vary when related to works like traditional culture, expressions or national symbols.
Nonetheless, concepts, ideas, isolated letters or digits, among others, are excluded from recognition and protection of the State as they are not considered art works. For example:
- ideas, formulae, solutions, concepts, and in general 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 individually, except where they are stylised to such an extent that they become original designs;
- names and titles or phrases individually;
- 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 division, or the names, abbreviated names, symbols or emblems of intergovernmental or non-governmental international organisations;
- legislative, regulatory, administrative or judicial texts, and official translations thereof; nevertheless, protection shall be available for parallel texts, interpretations, comparative studies, annotations, commentaries and other similar works that involve the creation of an original work;
- the content of news or journalistic information, whereas the form of expression thereof is protected; and
- information or phrases from everyday use, such as proverbs, legends, facts, calendars or scales of measurement.
1.5 Is there a system for registration of copyright and, if so, what is the effect of registration?
Yes, registration must be carried out before the Mexican Copyright Office ("MCO"). The registration of the work is merely a declaration and does not in itself constitutive a right.
Therefore, the effect of copyright registration is merely to serve as a presumption of property over the work.
1.6 What is the duration of copyright protection? Does this vary depending on the type of work?
The term of protection of economic rights in Mexico is:
- For the author's life and 100 years post mortem. In case of joint authorship, the term will be counted from the death of the last surviving author.
- 100 years from its divulgation.
The type of protection will not vary depending on the work, however there are differences in neighbouring rights, for example for book publishers, there is a protection of 50 years from the first edition of the book, and interpreters or executants have a term of 75 years to exercise their opposition rights.
1.7 Is there any overlap between copyright and other intellectual property rights such as design rights and database rights?
There is a unique right in Mexican Copyright called Reserva Rights. Reserva is an exclusive patrimonial right to authorise the use of titles of publications or broadcasts, names of artists or artistic groups, characters of fictitious or human nature, or so-called publicity promotions. As such, Reserva Rights sometimes overlap with trademarks and with other types of works protected by copyright.
Likewise, a similar figure in both trademarks and copyright is sound. According to the Industrial Property Law ("IPL") sound may be registered as a trademark and in copyright the protection would be of the phonogram or sound recording.
1.8 Are there any restrictions on the protection for copyright works which are made by an industrial process?
There are restrictions on the industrial or commercial exploitation of the ideas embodied in works.
2.1 Who is the first owner of copyright in each of the works protected (other than where questions 2.2 or 2.3 apply)?
The first owner of copyright is the author or authors of the work. The author is the natural person who creates any literary, artistic or scientific work.
2.2 Where a work is commissioned, how is ownership of the copyright determined between the author and the commissioner?
In case of a commissioned work or a work-made-for hire, all economic rights and divulgation rights correspond to the entity or person who commissioned the work, however the remaining moral rights remain with the author.
2.3 Where a work is created by an employee, how is ownership of the copyright determined between the employee and the employer?
In the case of work carried out as a result of an employment relationship established through an individual employment contract in writing, it shall be presumed that the economic rights are divided equally between employer and employee.
The employer may disclose the work without the employee's authorisation, but not otherwise. In the absence of a written employment agreement, the rights shall be vested in the employee.
2.4 Is there a concept of joint ownership and, if so, what rules apply to dealings with a jointly owned work?
In terms of the MCL, for works of joint authorship, the rights granted by this shall accrue to all the authors in equal shares, unless otherwise agreed or unless the authorship of each one is specified.
In order to exercise these rights, the consent of the majority of the authors shall be required. The minority, if any, shall not be obliged to contribute to any costs that might arise, subject to their deduction from any benefits that might be obtained.
When the aforementioned majority exploit the work, they shall deduct the amount of the expenses incurred from the total proceeds and hand over to the minority the share to which the latter is entitled.
When the contribution made by each of the authors is clearly identifiable, those authors may freely exercise their economic rights.
Finally, each of the co-authors of a work may seek the registration of the whole work. If any of the co-authors or owners of economic rights dies and does not have any heirs, his rights shall be assigned to the other co-authors.
3.1 Are there any formalities which apply to the transfer/assignment of ownership?
There are certain formalities including that agreements and contracts by which economic rights are transferred must be registered before the Mexican Public Copyright Register in order to be enforceable against third-parties.
3.2 Are there any formalities required for a copyright licence?
There are some formalities established in the MCL and as such any licence granted must be onerous and temporal, and almost always in written form.
3.3 Are there any laws which limit the licence terms parties may agree to (other than as addressed in questions 3.4 to 3.6)?
In the absence of any express provision, any transfer of economic rights shall be deemed to be for a term of five years.
Exceptionally, a term of more than 15 years may be agreed upon but only in exceptional cases where the nature of the work or the scale of the required investment justifies a longer term.
3.4 Which types of copyright work have collective licensing bodies (please name the relevant bodies)?
All copyright and related rights works have collective licensing bodies or collective management societies. As such, they are not restricted only to certain works. The most relevant societies in Mexico are:
- Society of Authors and Composers of Mexico (SACM is its Spanish acronym).
- General Society of Writers of Mexico (SOGEM is its Spanish acronym).
- National Association of Interpreters (ANDI is its Spanish acronym).
- Mexican Society of Music Performers (SOMEN is its Spanish acronym).
- Mexican Society of Plastic Arts (SOMART is its Spanish acronym).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.