COPYRIGHT

1.- INTELLECTUAL PROPERTY

1.1. Concept:

Intellectual property is that which arises from the creative effort of the man who
constructs a work, contributing his intellect.

It belongs to the field of intangible rights, that is, intangible objects that are not subject
to transmission or transfer. Without a doubt, as they say, intellectual property does not
have the same legal nature as other properties.

The World Intellectual Property Organization, which we will hereafter refer to by the
acronym WIPO, in response to the question What is intellectual property?, says that
“Intellectual property deals with creations of the mind: inventions, literary and artistic
works, as well as symbols, names and images used in commerce.”

Intellectual property has a major presence in the social market economy and one of its
characteristics is to prevent and combat piracy (clandestine production and marketing of
illegal reproductions).

This is why the institution called the National Institute for the Defense of Consumers
and Intellectual Property (INDECOPI) was created, which has among its policies the
fight against piracy.

 INDECOPI: Heads the institutions that protect copyright and fight piracy, but
there are also collective management associations such as APDAYC, the
Peruvian Association of Authors and Composers and others such as APSAV,
which brings together visual artists, UNIMPRO, which brings together
phonographic producers and others that define authors of literary and artistic
works.
Above all, the aim is to reduce, if not eliminate, the clandestine manufacture and
distribution of illegal works and to protect authors through institutions that
oversee creative contributions.

1.2. Scope of intellectual property

It is now traditional to consider that under the name of intellectual property rights, the
following are grouped together: copyright and industrial property.
The grouping of these subjects, copyright and industrial property, is expressed in the
Stockholm Convention of 1967, which establishes the World Intellectual Property
Organization (WIPO), and in its article 2, relative to Definitions, in numeral VIII, it
states the following, with respect to intellectual property:

-to literary, artistic and scientific works.

-to interpretations by performing artists and to performances by performing artists, to

phonograms and to radio broadcasts.

-to scientific discoveries.

-to industrial designs and models.

-to trademarks, trade names and service marks, as well as to trade names and
denominations.

-protection against unfair competition.

-and all other rights relating to intellectual activity in the industrial, scientific, literary
and artistic fields.

WIPO divides intellectual property into two categories:

a.- Industrial property, which includes patents for inventions, trademarks, industrial
designs and geographical indications.

b.- Copyright, which includes literary works such as novels, poems and plays, films,
musical works, artistic works such as drawings, paintings, photographs and sculptures,
and architectural designs. Rights related to copyright include the rights of performers in
their performances, those of producers of phonograms and those of broadcasting
organizations in respect of their radio and television programmes.

2.-COPYRIGHT

2.1. Concept

It is a branch of intellectual property law, linked to the rights of the person, which
"regulates the subjective rights of the author over creations that present individuality
resulting from his intellectual activity, which are usually stated as literary, musical,
theatrical, artistic, scientific and audiovisual works."
Copyright has the rank of fundamental human right and is recognized by the
UNIVERSAL DECLARATION OF HUMAN RIGHTS.

According to José Carlos Erdozain, “Copyright is the legal discipline that protects
works and services as artistic creations of the human intellect.”

3.- OBJECT OF COPYRIGHT

The object of Copyright is the protection of all works of genius, in the literary or artistic
field, regardless of their genre, form of expression, merit or purpose. This protection
extends to the rights holders and the owners of related rights.

The object of law. It is not the abstract idea, which is common knowledge, but the way
in which the author reveals it to the public. As the object of law, one must consider not
the idea itself, but the idea when it has acquired a sensible appearance, which is given to
it, that is, the production resulting from thought and the form adopted to express it.

Our legislation protects copyright, especially in works of ingenuity. It defines the Work
as: Any personal and original intellectual creation, capable of being disclosed,
reproduced in any known or unknown form.

Works of genius are understood to be those that are the product of the author's
creativity. That is to say, to create means: to take something out of nothing, to do
something that did not exist and it is allowed to be done on the basis of previous, pre-
existing elements.

Works in general should not be copies of others, because a work must be different from
the others, it must have its own individuality, which reflects the personality of its
author.

4.- THE AUTHOR

4.1. Concept

It is the natural person capable of intellectual creation, and that can be of a literary,
artistic, scientific or technical nature.

Delia Lipszic, referring to the author, says: “In the Latin legal concept, the quality of
author and, therefore, the original holder of the right is only recognized to the physical
person who creates the work; only by exception is it admitted that the original
ownership arises in the head of other persons (for example, in collective works, unless
otherwise agreed).

4.2. Author classes

 Personal: He who individually assumes the creation and responsibility for his
work. For example: Mexican jurist Eduardo García Maynes as author of
Introduction to Law.
 Co-author: The person who participates in a group or collective creation.
Example: Peruvian Theater Groups.
 Pseudonym: Take an artistic, literary or scientific name. Examples: Oscar Miró
Quesada de la Guerra, scientific journalist known as Racso.
When a pseudonym acquires the importance of a name, it enjoys the same legal
protection granted to the latter, according to Art. 32° of the current Civil Code.
 Anonymous: Author unknown, who keeps his name confidential, sometimes for
ideological-political, religious and social reasons; to avoid persecution and
harm.

5.- THE WORK

5.1. Concept

It is an intellectual, original creation, susceptible to being reproduced or disclosed by

known or unknown means, e.g.: Books, phonographic reproductions, information
programs, etc.

Dr. Antequera warns that there are limitations to the concept of work, both in
international legislation (agreements) and in national legislation. It boils down to saying
that the work is protected, and that there are classes and types, which are closely linked
to the media.

However, in some international treaties we find some definitions worth taking into
account, such as:

 DECISION 351: of the Cartagena Agreement Commission, which deals with the
common regime of copyright and related rights, states “A work is any original
intellectual creation of a scientific, artistic or literary nature that can be directed
or reproduced in any form.”
  The WIPO (World Intellectual Property Organization) says that the work is
“Any original intellectual creation expressed in reproducible form”
 In common language: The work is any production of the understanding in
science, letters or arts.

5.2. CLASSES OR TYPES OF WORK

It is any original intellectual creation capable of being disclosed or reproduced in any

known or unknown form and may be literary or artistic.

 ANONYMOUS WORK: One in which the identity of the author is not

mentioned by his or her own will. It is not an anonymous work, one in which the
pseudonym used by the author leaves no doubt about his true identity. (Art. 2
D.Leg.822)
 DERIVED WORK: A work that is based on a pre-existing work, but which
shows some degree of creativity, which allows it to be recognized as having a
certain originality. This originality can be seen in the composition as well as in
the expression.
In order for a derivative work to move freely in the art world, it must ask for
permission from the author of the pre-existing work if he is alive, and from his
successors in title if he is dead; this implies knowing whether the work is in the
public domain, in which case the aforementioned authorization will not be
necessary, and if it is still in the private domain, whether such authorization will
be necessary.
Derivative works include: translations, adaptations, revisions, updates and
annotations, summaries, extracts, musical arrangements.
 COLLABORATIVE WORK: This is a work created jointly by two or more
natural persons, who are what are called co-authors of the work created in
collaboration and who are therefore the original owners of the moral and
property rights.
 COLLECTIVE WORK: A work created by several authors, on the initiative and
under the coordination of a natural or legal person, who disseminates and
publishes it under his or her direction and name, and in which it is not possible
to individualize their different contributions because it is an undivided right over
the whole work created. (Art. 2 D. Leg. 822). They are cultural manifestations of
 ethnic groups or collective societies, whose objective is to protect this entire
manifestation.

5.3. WORKS PROTECTED BY COPYRIGHT

They are original, proprietary works that enjoy copyright protection, and among them
we have:

a. Literary works expressed in written form, through books, magazines,

pamphlets or other writings.

Copyright protects works expressed in written form, which can be reproduced,

performed, exhibited, broadcast, etc. That is, those formal works or creations and not
the ideas contained in the work.

Among the written works we have the traditional literary ones: poems, novels, stories,
scientific, didactic and technical works. Also considered within this framework are
advertising slogans, yearbooks, albums, all as long as they denote some degree of
originality or individuality.

b. Musical compositions with or without lyrics

The art of musical composition is the sound expression of the internal qualities of a
human being and as such constitutes their property, being inherent to them.

c. Audiovisual works

Here we have cinematographic works, which are a bit complex, because many creators
participate in them, authors of literary, dramatic and musical works; authors of the script
and dialogues, musical compositions, etc. The problem arises in determining who the
authors and co-authors are and what rights they should be recognized.

d. The works of architecture

Protected architectural works are: buildings, similar constructions, projects, designs,

sketches, plans and models made for construction. Copyright protects architectural
works as long as they are original and individual creations; the type of originality in this
case lies in the form of the construction, in the type of design.

5.4. DERIVATIVE WORKS THAT ENJOY PROTECTION

The derivative work is based on an existing work without prejudice to the rights of the
author of the original work, with the respective authorization, whose originality lies in
the arrangement. The adaptation or transformation of a pre-existing work, or the
creative elements of its translation into a different language, etc.

The originality of the derivative work may be found in the composition and in the
expression, as in adaptations, in the composition alone (as in compilations and
Anthologies), or in the expression alone (as in translations).

a. Translations and adaptations

Translations.- These are works expressed in different languages and which undoubtedly
have an original version, which must be faithfully respected according to the content
and style of the original work.

Adaptations.- They constitute the most widespread categories of derivative works.

Through adaptation, a work goes from one genre to another (for example, film
adaptations, etc.), or the work is varied without changing genre. (For example, when the
number of chapters of a television work is increased).

b. Revisions, updates and annotations

Revisions are works that have already been revised and have fulfilled the purpose of
correcting their errors.

Updates are works whose previous aspects are no longer worth mentioning.

Annotations are clarifications made to the work.

6.- RIGHT OF OWNERSHIP

6.1. Concept

It is the one that has the author as the creator of the work, therefore he is the owner of
the work. It corresponds to the natural or physical person who creates the work and
who, consequently, has the status of author and original ownership. Delia Lipszic says
in this regard: “Original ownership is the correlate of the quality of author, so it
corresponds to the physical persons who create the works.”
The same author specifies: “Other persons, whether natural or legal, may be derivative
holders of some copyrights. So authorship and ownership are two perfectly
distinguishable concepts.”

In the case of legal entities, “To attribute to them the original authorship or ownership it
is necessary to resort to a legal fiction. The fictio iuris by which the quality of author or
the original ownership of the works are attributed to physical or legal persons other than
the physical person who created the work, respond to the interest of third parties who
exploit the works”

“The situations of derived ownership according to the Argentine author are configured
when some of the powers that originally correspond to the author are transferred to
other persons (physical or legal) by conventional transfer or by full right by legal
provision, by presumption of transfer or by transmission mortis causa”

6.2. Rights holders

6.2.1. Author

 Original headlines

The person in whose name the copyright arises is the original author. It may be an
original work or a derivative work (translation, adaptation or any other transformation);
the author is the original owner of the rights over it, without prejudice to the rights of
the author of the work from which it is derived, that is, of the original or primeval or
pre-existing work, but we prefer not to use this last expression to avoid confusion with
the requirement of originality.

 Derivative headlines

These are natural and legal persons who have received ownership of some of the
author's rights. Derivative ownership can never cover the entire copyright (moral and
patrimonial).

Indeed, moral rights are inalienable; they are not subject to transfer, because they are
personal rights, belonging to the author and as such, they do not intervene in the transfer
of ownership; what is undeniably transferred are the property rights, including the right
of exploitation.
The use of the derivative work is subject to authorization: from the owner of the work
and from the owner of the derivative work.

Derivative ownership can be obtained:

 By transfer (whether conventional or by operation of law)

a) Conventional: the assignees or derivative owners have the rights granted in the latter
over the work that is the subject of the assignment contract. The transfer may be total or
partial, depending on whether it includes all or some of the author's property rights. In
order to protect the author, some legislation limits, in different ways, the total transfer.
The same limitation is usually imposed in the statutes of authors' societies on their
members.

b) By legal provision: the assignees are, by operation of law, derivative title holders
(originally ownership corresponds to the authors); the presumption of assignment is
iuris et de iure with respect to the exploitation rights specifically included in the law.

 By presumption of assignment established by law, unless otherwise agreed.

Authors may claim the rights they have reserved in their agreements from third parties
contracted with the producer. (Berne Convention Art.14)

 By mortis causa transmission.

Successors mortis causa receive the patrimonial rights that the author has not transferred
by inter vivos act; they can exercise the negative or defensive powers of the moral right
and the right of disclosure of posthumous works.

Derivative owners are usually called the author's successors or successors in title.

6.2.2. Freelance Author

It is the work disclosed without indicating the name or pseudonym of its author.

The anonymous or pseudonymous author is the original owner of his work and may
delegate his powers to a third party to publish the work.

6.2.3. Author of the Derivative Work

The original owner of the rights to the derivative work.

For this type of work, double authorization must be requested for its use: one from the
original owner and another from the owner of the derivative work.

6.2.4. Co-authors: Collaborative Work

Co-author.- When several authors contribute to the creation of a work together or

separately. As are collaborative works or an encyclopedia as a collective work, or
cinematographic works.

The law then clearly explains how a conflict that arises when co-authors wish to
separately exploit their contributions to the work will be resolved.

The co-authors of a work created in collaboration will be jointly the original holders of
the moral and property rights over it and must exercise their rights by mutual
agreement.

When the contributions are divisible or the participation of each of the co-authors
belongs to different genres, each of them may, unless otherwise agreed, separately
exploit their personal contribution, provided that it does not harm the exploitation of the
common work.

In case of disagreement, the parties may go to the Copyright Office, which will issue a
resolution within fifteen (15) days, previously calling a conciliation meeting. Against
the resolution that resolves the disagreement between the parties, only an appeal may be
filed within five (5) days following its notification, which must be resolved within
fifteen (15) days.

6.2.5. Authors: Collective Work

A collective work is one created by the initiative and under the coordination of a natural
or legal person, who edits and distributes it under his or her name, based on the personal
contributions made for this purpose by the authors who have participated in its
preparation, which merge into a unique and autonomous creation.
In the case of a collective work, it is presumed, unless proven otherwise, that the authors
have transferred, in an unlimited and exclusive manner, the ownership of the property
rights to the natural or legal person who publishes or discloses it under his or her own
name, who is also empowered to exercise the moral rights over the work.

6.2.6. Authors: Marital Society

In a marital partnership, each spouse is the owner of the works created by each of them,
over which they will each retain their absolute moral rights, but the pecuniary rights
made effective during the marriage will have the character of common property, except
in the case of a regime of separation of assets.

7.- MORAL RIGHTS

7.1. Concept

The moral right of the author is characterized by being perpetual and inalienable, non-
seizable, non-waivable and imprescriptible. Because the moral right is inalienable, it is
not transferable by inter act. Lives to third parties, whether free of charge or for a fee;
and as it is not transferable, it cannot be encumbered with real rights such as mortgages
or pledges; it is also non-waivable and imprescriptible.

Moral rights are those held by the author as creator of the work. It is a right inherent to
your person, in an exclusive and excluding manner. They are motivated by the author's
feelings and are devoid of any economic interest. They arise from personal
achievement, are related to the author's inner satisfaction, with the public's expectations
and enjoyment, and with the cultural contribution to the country. They are not for profit.
It is related to Human Rights or Fundamental Rights of the person.

For example: An author writes for personal satisfaction in order to be read; a vocation
as a popularizer and the need to share his thoughts, emotions, ideas, confidences, etc.

7.2. Beginning

Moral rights operate under the following principles:

 Principle of the Absolute

The authorship of the work belongs to a single author, excluding the rest, and is
opposed to any person who is not the author.
 Principle of Inalienability
 Moral rights are not transferable. The author's rights cannot be waived; they are
non-transferable rights. Exclusive, sold out by the same author.
 Principle of Non-Seizability
No embargo is possible. Ideas cannot be seized
 Principle of Non-Waiver
The author cannot renounce his work
 Principle of Imprescriptibility
Usucapion does not work, nor does prescription
 Principle of Non-Expropriability
You cannot expropriate an author's ideas, you cannot alienate the author's ideas.
 Principle of Transmissibility
It only operates after the death of the author and operates for the benefit of his
heirs, who safeguard his message. It lasts 70 years in Peru.

7.3. Fundamental moral rights

 Right to Disclosure
It is the most important right of the author because it is like a bridge that
connects the author with the public. Only the author can authorize the
reproduction and dissemination (broadcast) of his work, in what form, or
whether it will be kept confidential within the sphere of his privacy, as well as
the right to publicly communicate the essential content of the work or a
description of it. This faculty of disclosure is, above all, discretionary, so it is up
to him to modify his work, once or as many times as he wishes.
 Right to Fatherhood
It is the author's right to have his status as creator of the work recognized. And
the way to acknowledge paternity is by mentioning his real name or pseudonym,
and defending him from any usurpation to which he may be subject. Eg: only the
author can name his work.
 Right to Integrity
The right to the integrity of the work does not allow the work to be distorted or
modified, considering that any infringement of the work damages the reputation
of the author.
The Berne Convention recognizes the right to integrity in its Art. 6, whose text
states: Regardless of the author's property rights, and even after the transfer of
 these rights, the author shall retain the right to claim authorship of the work and
to oppose any deformation, mutilation or other modification of the same or any
attack on the same that causes harm to his honor or reputation.

 Right of Modification or Variation

The author has the right to modify the work, even if it has been disclosed; that
is, the author may correct, clarify, vary, delete, improve or perfect his work
before a new edition or reprint.
 Right of access
The right of the author to access his work when it is in the possession of another
and thus assert his moral and property rights.
The right of the author to ask the publisher to see the work before printing or
reproducing it. That is to say, he controls his work.
 Right to withdraw the work from commerce
It is the right of the author to withdraw the work from commerce when his
personality so determines.
This prerogative of the author expresses the recognition of the freedom of
decision that the law grants to the author, when he decides not to disclose his
work or to suspend it. This right is exclusively reserved for the author and is not
transmitted to his heirs.

8. PROPERTY RIGHTS

8.1. Concept

These are the rights linked to the benefits that the author obtains from the use of his
work. Seeks fair compensation for creative work.

It is linked to Civil Law: Real Obligations, Contracts, Successions, Private International

Law.

8.2. Fundamental property rights

They are those that recognize the author's "right to exploit his work in any form or
under any procedure"

This allows for agreeing on the conditions under which the use will be carried out and
obtaining an economic benefit.”
The property rights, recognized by international and national legislation, are the
following:

 The Right of Reproduction

The right of Reproduction is the right to exploit the work in its original or
transformed form, through its material fixation in any medium or support and by
any procedure that allows its communication and the obtaining of one or several
copies of all or part of it.
Called copyright in the Anglo-Saxon system, it is the right that the author has to
authorize the copying or reproduction of his work.
 Right to Public Communication
Public communication is the right that a group of people has to have access to
the work.
It is the one that recognizes the author's right to authorize the public presentation
or disclosure of his work, that is, that several people gathered or not in the same
place can have access to the work, without prior distribution of copies to each of
them, by any means or procedure.
 Right to Distribution
It includes making available to the public, by any means or procedure, the
original or copies of the work, through sale, exchange or any other modality.
It is the right of the author to market the work in the countries or regions he
deems appropriate. This right includes the authorization to import works
published in other countries.
 Right to Translation, Adaptation and Musical Arrangements
It is the power that the author has to authorize the translation of his works, their
adaptation, musical arrangements based on an original work and other
transformations that could be made.

8.3. The Royalties

This designation corresponds to the remuneration that the author receives for the use of
his work and depends on its acceptance, that is, on the response of the public.

9.- COLLECTIVE MANAGEMENT SOCIETIES

9.1. Concept

These are organizations created to manage copyright and related rights; their main
objective is to defend personal interests (moral rights) and manage the property rights of
authors over their creative works.

These Collective Management Societies are generally private non-profit entities. The
function or activity is collection and distribution or allocation.

Collective management societies are not limited to controlling the collection and
distribution of royalties from authors' works, but with the development of rights related
to or adjacent to copyright, they are also responsible for collecting and distributing the
performance royalties that correspond to artists, performers or interpreters.

Collective management societies from almost all over the world make up the
International Confederation of Societies of Authors and Composers (CISAC), and by
nature, their participation is necessary, since they are the only ones, as interested
entities, that can control the use of works in the market, since it is impossible for the
author to know where, when and how their works are being used.

In Peru there is the Collective Management Society called APDAY, in Argentina there
are ARGENTURES and SADAIC, and in Mexico SACM and SOGEM, in Brazil UBC.

In order to operate, APDAY requires authorization from the INDECOPI Author's

Office, an entity that exercises the function of supervision, inspection and surveillance.

Collective management societies, like all civil societies, require their bylaws with which
they will exercise ownership that allows them to represent and exercise the
administration of the assets that each author has delegated to them.

9.2. Collective management in Peru

In the country, they are classified as non-profit civil associations subject to a special
regime, that is, they are legal entities that must take into account the provisions of the
civil code, Legislative Decree No. 822, and their statutes, being authorized to manage or
defend the patrimonial and eventually moral interests of their associates or
representatives who are holders of copyright or related rights at a national or
international level by virtue of the reciprocity agreements in force with other
management companies in the world, whether through administrative and/or judicial
channels.

One feature worth highlighting is the fact that these companies are only allowed to incur
administrative expenses within the percentage established by law, which in the case of
Peru would be equivalent to 30% for representation expenses and an additional 10% for
sociocultural expenses.

On the other hand, it is worth mentioning that management societies comprise two basic
aspects: collection and distribution or sharing. Their effectiveness lies in the
impossibility of the rights holder to directly exercise the rights that correspond to him
over his works, since it is impossible for him to determine where, when and how his
works are being used.

9.3. Functions involved in collective management of copyright

a) Authorization: They play an important role in the formulation of contracts.

b) Remuneration: The amount of the fees or tariffs constitutes one of the main aspects in
the negotiations between the entities that represent the broadcasters and the
management companies.

c) Collection: This is what the company does on behalf of the associate.

d) Distribution or allocation: This is what the company does among its partners, after
deducting the commission.

e) Social protection activities

f) Cultural activities