Written by the Becerril Coca & Becerril Legal Department
Development and Safeguarding of Private Property in the West
It is a well-know fact that one of the basis of Western powers democracies and economies (with the exception of Russia) is a sound regime of Law geared towards the effective protection of Private Property. Such statement is not surprising, nor does it come from a contemporary view; the development of this idea stemmed thousand of years ago, and gradually took root in the course of time.
It is not surprising the fact that these powers are acting actively throughout the world to promote and strengthen this idea. Democratic regimes nowadays constitute themselves as the most fervent guarantors of a promotion, development and protection system of Private Property, and therefore, of sustainable development.
Classical Athens, and mainly in Pericles’ Athens, based its wealth and power on the safety of its landlords. Rome developed concepts that are not foreign even in our days, such as dominium and propietas; only internal corruption and barbarian invasions were able to weaken, with time, propietarius. The English Magna Carta laid the foundation for England to become the most prosperous society from the XVI to the XIX centuries, and much was owed to an actual respect for Private Property. We may remember John Locke when he said that "the great and main reason why men join together in communities, and place themselves under the Jurisdiction of a government, is the preservation of property."
The economic development of Western Europe, Japan and the so-called Asian "Tigers" in the middle of the XX Century corresponded to the strengthening of the rights of Private Property. North America and its governments, has traditionally seen itself as the bearers and ultimate examples of the respect and promotion of Private Property.
To conclude this section, we only have to say that the most affluent countries in the world are characterized today by showing a high respect and promotion of the rights of Private Property.
Having said this, we could ask ourselves: What has all this to do with the title of this paper? The answer, albeit brief and seemingly easy, has become historically a whole ethical and even philosophical foundation which our country still has to fully comply: the promotion and respect of Private Property rights not only tangibly, but also non-tangibly, or what is the same, the Intellectual Property arising from the monopolistic and constant creative power in humankind.
In a nutshell, the West has institutionalized a deep safety and certainty in Private Property through laws and government entities, and as from the invention of the press, a profound respect to Intellectual Property Rights, supporting inventive work as a generating wellspring of wealth and prosperity.
Witnesses of all this have been the different legal bodies which started to develop in the XVI century in Spain, in the British Colonies in North America, France, Italy, Germany, and Portugal, until they attained a full and constantly perfectible system, not only legal, of institutional security to Intellectual Property.
The case of Mexico
It was until 1917, when with the enactment of our Political Constitution a temporary protection started to be given to authors, artists and inventors on their works and inventions, as established in paragraph X of the current section 28 of the Constitution:
"Those privileges that are granted for a certain time to authors and artists for the production of their works, and those for the exclusive use of inventions are granted to inventors and improvers of some enhancement are not to be deemed as monopolies".
From this paragraph, the following stands out:
- Copyrights in Mexico are a temporary privilege that the State grants to creators, artists, inventors, and improvers.
- This privilege is exclusive, and does not constitute a monopolistic activity.
In this regard, the Mexican State, within a Constitutional framework, does not acknowledge, foresees, nor develops an actual State policy to promote and safeguard the rights of Intellectual Property arising from works and inventions, as is the case with the following systems: the Anglo-Saxon Intellectual Property (Copyright Law), and the Continental Copyright or Droit d’Auteur (followed mainly in Western Europe).
Here lies the difference: There is no social, political or economic acknowledgement in Mexico that is consistent with the importance of promoting and safeguarding Intellectual Property; it has been only a matter of adopting a title to identify a group of legal provisions within the vast universe of Mexican laws.
That is, there is no clear and effective awareness by the Mexican State of safeguarding and promoting Intellectual Property Rights for the benefit of their authors and inventors and/or successors as regards their works and inventions.
Notwithstanding the foregoing, the Mexican State, by means of secondary provisions, such as the Federal Copyright Law (1997), and the Industrial Property Law (1994) is making efforts, although not at the optimal level currently required by the World and the Mexican development, to at least rescue and guarantee a regime of Intellectual Property Protection.
As regards the protection of copyrights, the following concepts and frameworks are worth mentioning:
- The acknowledgement of the so-called "Moral Right", and the transfer of Property Rights in copyrights.
- The existence and legal regularization of the following contractual schemes: literary and musical work publishing contract; stage representation contract; broadcasting contract; audio-visual production contract, and advertisement contracts.
- The acknowledgement and protection of computer programs and databases.
- The acknowledgement and legal regularization of related rights and their holders: artists, interpreters or performers; book publishers; producers of phonograms and videos, and broadcasting organizations.
- The existence of provisions for the Copyright Public Registry.
- The legal regularization of Collective Management associations.
- The legal and administrative regularization of the National Copyrights Institute, as an entity of the government competent in copyrights and related rights.
- The legal regularization of a number of procedures, such as agreement, arbitration and legal procedures, as well as administrative and penalty procedures (Anti-Piracy Scheme).
On the other hand, regarding Industrial Property, we have acknowledgement of the following Industrial Property Rights: patents, utility models, industrial designs, integrated circuits, plant varieties, trademarks, trade names, slogans, denominations of origin, and industrial secrets.
However, our practice is still weak in enforcing said rights by means of efficient interlocutory injunction, especially because posing counter-bond may lift the latter.
In addition to the aforementioned, our legal system lacks of an effective procedure to obtain substantial remedy on the damages resulting from infringement.
Unfortunately, both patent and trademark infringement were de-criminalized and now criminal action only applies in cases of recidivism.
In few words, at the end of the day an effective scheme for an adequate enforcement of the intellectual property rights in Mexico has not been satisfactory developed.
Where is the Problem
Despite the existence of laws and government institutions engaged in the promotion and protection of Intellectual Property in Mexico, which perhaps were appropriate in the beginning to our culture and economic dynamics, do no longer respond in an effective way today to the development needs that Mexico has and demands.
In addition to that, the enforcement of intellectual property rights in Mexico has traditionally lacked of adequate mechanisms to meet acceptable standards for the economic development framework adopted by our country.
Listed here are some obstacles and problems that attorneys face day to day:
- Lack of legal tradition.
- Corruption and impunity.
- Lack of academic training, updating and specialization of the authorities, as well as their administrative and operative inefficiency.
- Lack of material and financial resources.
Furthermore, the high levels of piracy overwhelm both the creator and its successor(s), and small entities; the large "cultural" industries established in Mexico are likewise affected.
The isolated and extraordinary efforts, both of the interested parties and the authorities, are easily surpassed by the culture and activities of those who have devoted their entire lives to forgery and piracy, all this sponsored by an old culture of impunity and unfair competition.
If we fail to understand that only with clear and efficient policies that aim to protect and promote intellectual property, the much needed long-term investors will keep their resources in Mexico, we will not lay the foundations for a sustained development and consequently a genuine social peace.
Finally, I would like to conclude that:
- A matter that requires our immediate attention is the creation and development of clear and efficient State policies, which aim to promote and protect non-tangible private property (intellectual property).
- As a result of the foregoing, create a cultural conscience for the protection of Intellectual Property in Mexico.
- An ethical and economic revitalization of the existing institutions, or the creation of new institutions, which actually meet our needs.
- Turn our eyes abroad, and to the extent it is within our cultural possibilities, take measures and examples that have traditionally served as triggers of development and safeguarding of Intellectual Property.
It is time to join wills and to invest efforts to solve this problem, it is time to dignify the activities of our Mexican creators and to respect their work...it is time to invest in justice.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.