Authors' Rights in Latin America

The QuarterlyReviewof Economics aud Fiance, Vol.
34, Special Issue, Summer 1994, pages 117-149

Copyright 0 1994 Trustees of the Universityof JJlinois
All rights of reproductionin any form reserved.
ISSN 00335797
Authors Rights in Latin America
JEFFREY D. STEINHARDT
Corporate Attorney for Latin America, Microsoft Corporation
RICHARD E. NEFF
Law Offkes of Richard E. Neff
Many Latin American and Caribbean countries are today in the process of reforming
or enhancing their Derechos de Au&-Authors Rights-legal regimes. Further
maturation ofAuthors Rights legislation and adequate mechanisms to enforce those
property rights in Latin America benefit not only the regions respective authors
rights-based industries, but also the community as a whole, through economic growth
and the development of culture, technology, national infrastructure, and science.
THE CONTOURS OF INTELLECTUAL PROPERTY RIGHTS

PROTECTION IN AUTHORS WORKS
The principle of protecting the rights of authors in their creative, scientific and
literary works has been broadly embraced, * in recognition of the necessity of com-
pensating for the labor, ingenuity, creativity, or investment required to create works
of authorship.3 Many countries, such as the United States, have limited the scope of
protection for authors rights to avoid the overextension of monopolies and the
thwarting of continued progress in the literary, artistic, and scientific realms through
excessively strong authors rights4Where authors protection evolved primarily from
the French model droit de auteur, there is greater emphasis upon individual authors
rights, leading to the greater development of droit moral (moral rights), which is the
regime protecting the authors personalrights to exploitation of the work. Even within
the French model, however, economic rights and societys interests are balanced in
determining the scope of protection for authors rights.
To avoid the potentially negative commercial and societal effects of excessive
protection, authors rights have been limited in several fundamental respects. Most
simply, authors rights protection is limited in duration.5 Perhaps more important,
protection is also limited in scope. Although the concept has been described in
117
118 QUARTERLY REVIEW OF ECONOMICS AND FINANCE
myriad ways, authors rights protection is extended only to expression and not to
the actual ideas or concepts that are the foundations for the expression. For example,
the author of a form describing a method of bookkeeping may be able to restrict use
of the form, but cannot monopolize or control the use of the method by others.6
Thus, a system or method itself may constitute an idea that cannot be the subject of
copyright protection, and remains available for others to use in furthering the
development of science or culture. Similarly, common themes or plots themselves
cannot be monopolized as they are the basic ideas underlying an authors expression.
When public domain or common themes are embellished, however, the resulting
embellishment may be considered a protectible work of authorship.
Combinations of common elements or even ideas that would themselves be
unprotectible may be protected as compilations or arrangements, but only insofar as
there are original elements of expression in their combination or arrangement.8
Based upon the same theoretical foundation, the facts contained in an encyclopedia,
directory, or computerized database are not by themselves protectible, but their
arrangement, sequence, or organization may be.g
Against this background of limited protection, local and international law have
accorded protection to computer software programs as works of authorship. The
degree to which software is a protected work of authorship is a complicated and
unresolved question. For present purposes, however, it is sufficient to note that
software is widely protected against literal copying done without authorization by the
holder of the rights in the work.
Additionally, there are substantial exceptions to the authors exclusive right to
authorize and control the publication, use, modification or reproduction of her work,
recognizing societys interest in gaining access to a work for cultural, educational, or
scientific purposes. The Berne Convention recognizes limited exceptions to authors
exclusive rights for the purposes of translation and local publication of otherwise
unavailable literary works by developing nations. * Under the Software Directive of
the European Community, decompilation or reverse engineering of underlying
software code normally prohibited by authors rights is permitted under limited
circumstances to permit creation of software that will operate compatibly with the
authors software.13 The World Intellectual Property Organization (WIPO), the
largest nongovernmental organization of the United Nations, responsible for the
administration of the Berne Union, has recommended similar exceptions to ensure
the availability of authors works for purposes of quotation, teaching, certain private
uses, libraries and archives, and government and religious functions.4 And in the
United States, there exists a controversial jurisprudence revolving around the concept
of fair use which arises from a second authors publication without authorization of a
news broadcast, biography, research, commentary, or parody involving another authors
protected work.15 These cases are intriguing, for their revelation of a visible balancing
process in apportioning the degree of protection thatwill best achieve the communitys
goals through the application of its authors rights policies.
AUTHORS FUGHTS IN LATIN AMERICA 119
AUTHORS RIGHTS INDUSTRIES IN LATIN AMEFUCA
Intellectual property has become a powerful economic force in the global economy,
apart from its intrinsic value owing to its cultural and scientific contributions to
development. In the U.S., for example, the copyright-based industries contributed
$331.5 billion to GDP in 1990. Moreover, the U. S. software industry has been the
fastest growing industry during the last decade.
Accurate figures for Latin American copyright industries are difficult to obtain.
Given the tremendous role played by copyright industries in other regional and
national economies, lg it is reasonable to hypothesize that copyright industries have
a real potential to make a growing contribution to Latin American and Caribbean
national economies and employment opportunities. Indeed, Latin America has long
made serious contributions in film, music and literature that are known and dissemi-
nated throughout the world.
Although these contributions by Latin Americas more traditional authors are
well known, even representatives of the youthful software industry report that
Panamas nascent computer software industry is exporting products to more than a
dozen foreign markets2 Chile also has export-oriented software publishers. Vene-
zuelan, Colombian, and Costa Rican authors have all begun exporting their works,
and even in Bolivia, competent software engineers are developing highly complex
programs to address local needs. Finally, in the two years since Costa Ricas authors
rights agency began accepting computer software for registration, more than 48 local
authors have submitted applications to register works.22 Latin America has also
produced a young, well-educated technocratic class that is as adept with computer
software, in terms of both use and programming, as their counterparts anywhere in
the world.
LATIN AMERICAN LOSSES TO COPYRIGHT INDUSTRIES
One available indicator of the potential for economic growth by copyright industries
through Latin America is the statistics representing piracy losses experienced by the
U.S. copyright industry in that region. In 1992, the International Intellectual Prop-
erty Alliance (IIPA), a U.S.-based consortium of major copyright industries, reported
that it could document trade losses of roughly $660 million due to piracy in 16
Central and South American countries for 1991 .23 The figures presented were based
upon available information only, and understated the degree of 10~s.~ They also
failed to include any losses in the huge Mexican copyright industry markets. More-
over, the figures were based upon wholesale loss; one could reasonably add between
50 and 100 percent to the $660 million figure to estimate losses to the local economy,
reflecting lost revenues to distributors and retailers that provide legitimate copyright-
based industry products to consumers (see Table 1).
Tabb 1. U.S. TRADE LOSSES DUE TO PIRACY IN SIXTEEN CENTRAL AND

SOUTH AMERICAN COUNTRIES IN 1991 (in thousands of dollars)
Records Computer
country Motion Pictures and Music Programs Books Total
Argentina 8,600 10,000 20,000 5,000 43,600
Bolivia 800 n.a. n.a. 2,000 800
Brazil 50,000 10,000 40,000 25,000 125,000
Chile 1,600 5,000 15,000 3,000 24,600
Colombia 32,790 30,000 13,000 5,000 80,790
Costa Rica 780 1,500 9,000 1,000 12,280
Ecuador 1,750 30,000 ma. 3,000 34,750
El Salvador 1,392 5,000 n.a. 1,000 7,392
Guatemala 11,570 ma. ma. 1,000 12,570
Honduras 537 1,000 n.a. 1,000 2,537
Nicaragua 328 n.a. n.a. 1,000 1,328
Panama 1,800 n.a. n.a. 2,000 3,800
Paraguay 100 200,000 n.a. 2,000 202,100
Peru 7,200 13,000 ma. 10,000 30,200
Uruguay 2,900 5,000 n.a. 2,000 9,900
Venezuela 12,200 10,000 40,000 5,000 67,200
TOTAL $134,347 $320,500 $137,000 $69,000 660,847
TOTAL 1991 LOSSES: $660,847,000
Not~r: ma. = not available
Sounc: IIPA
Reprinted by permission
Table 2. SOFIWARE PIRACY IN LATIN AMERICA-1992
country % of Piracy Dollar Losses

Argentina 80 38 million
Brazil 80 91 million
Chile 75 28 million
Colombia 85 18 million
Mexico 85 206 million
Venezuela 85 91 million
Other Latin American countries* 72 million
N&=x Based on industry data and market analysis.
*Spec& country data not available.
Soune. Busmess Software Alliance, reprinted by permission

AUTHORS RIGHTS IN LATIN AMERICA 121
In Mexico, the Business Software Alliance (BSA) initially estimated 1992 piracy
losses to the personal computer software industry, including revenues lost by local
distributors and resellers, at $206 million (see Table 2) .25
Total 1992 losses to piracy in the personal computer software industry in Latin
America were estimated by the BSA at nearly one-half billion dollars.26
Experiencing similarly staggering losses due to piracy, in 1992, the U.S.-based
music recording industry announced that the value of mgunized piracy emanating
from the small Paraguayan economy outstripped the entire legitimate market for
music recordings during the same period for all of Mercosur (Southern Cone
Common Market) countries combined (Brazil,Argentina, UruguayandParaguay).27
SUPPORT FOR PROPOSITION THAT IMPROVED INTELLECTUAL

PROPERTY PROTECTION SPUR!3 ECONOMIC GROWTH
David M. Gould and William C. Gruben examined whether or not developing

countries should protect intellectual property.28 The authors refer to a 1990 study by
Chin and Grossman, demonstrating conditions under which the globally efficient
degree of intellectual property protection does not necessarily maximize every
countrys welfare.2g Strong protection may replace competition with monopolistic
conduct by right holders. In much of the Third World the cost of technology
monopolization can more than offset the contribution of stronger intellectual
property protection toward stimulating cost-saving innovations in a given country.
An additional argument against strong intellectual property laws in net technol-
ogy consuming countries is that enforcement costs can be very high.30 When the bulk
of protection is for foreign innovations, these enforcement costs lead to increased
royalty gains for foreigners and greater royalty expenses for nationals.
The Gould/Gruben study also reviewed the case for strong protection. First,
strong protection appears to stimulate innovation. While this observation is noncon-
troversial in the more technologically advanced world, a survey of 377 Brazilian
businesses indicated that 80 percent would invest more in internal research and
would improve training for their employees if better legal protection were available.32
Moreover, despite arguments that strong intellectual property protection may en-
hance the monopoly power of producers in some markets, it does not appear that
patent protection, the strongest form of intellectual property protection, has often
prevented competitors from entering the market in developed countries for very
long.33
Moreover, removing the pirating segment of the nations economy not only
benefits the states coffers, but probably fuels the conversion from pirate to legitimate
enterprise. For example, when Singapores copyright laws were strengthened in the
mid-1980s former pirates who had been copying audiocassettes and selling them,
ceased this activity, and many moved to the manufacture of blank cassettes to serve
the local market and to export.34
Perhaps the most compelling case for increased intellectual property protection
is that while technology may not cost much without it, it wont be worth much either.
Technology will tend to be old, and productive processes will be more backward and
less complex.35 A nonprotecting consuming country often discovers that the lack of
protection has an adverse impact on the ability of its business people to purchase
technology, even when they are willing to pay for it. First, technology owners hold
back for fear of theft in the consuming country. In addition, venture capitalists in a
Brazilian study were less likely to finance projects that were more secretive about their
technology projects, and in developing countries, the fear of intellectual property
theft made enterprises reluctant to reveal their technologies. As another example,
Brazilian companies often limit the training of their employees in using fh-m-devel-
oped technology, for fear that workers will appropriate it.36
A final reason for consuming nations to protect intellectual property is more
realpolitik, as innovation-producing countries are likely to retaliate against those with
weak intellectual property regimes. United States trade retaliation is particularly feared
abroad. This is considered by many to be the primary motivation of the move of many
37
nations over the past decade to expand their intellectual property protection.
The Gould/Gruben study found that growth and intellectual property protection
appear to be unconnected in closed trade regimes. Conversely, under a regime of
open markets, the growth-motivating effects (of stronger intellectual property
protection) dominate.38 In a continent that increasingly has hitched its star to the
economic growth promised by less protectionist, more open trade regimes (with the
possible exception of Brazil), the Gould/Gruben studys conclusions give govern-
ments additional reasons to extend strong protection to intellectual property.
Finally, there are benefits to education, infrastructure and the pace of develop-
ment when a society commits itself to technological advancement.
Benefits to the Public Through Improved Authors Rights Protection:

The Chilean Example
A program of improved enforcement of intellectual property rights not only may

contribute to economic growth in the private sector, but to growth in the public sector
as well. Recently, a local software industry interest group in Chile, the Asociaci6n de
Distribuidores de Software (ADS), engaged in the exercise of analyzing local losses due
to personal computer (PC) software piracy. They found a 73 percent piracy rate,
meaning that for each legal copy of business productivity software in use locally on
PCs, approximately three illegal copies existed. This is one of the lowest estimated
piracy rates in Latin America. Given that estimated rate, ADS determined that there
was a loss to local suppliers in the private sector of approximately $57 million (see
Table 3) .3g
Table3. SOFTWARE PIRACY IN CHILE-S OMENUhiBER!S
1988 1989 1990 1991 1992 Accumulate
Sales Potential (US$) $39,600,000 $35,400,000 $46,200,000 $58,800,000 $78,000,000 $258,000,000
Sales (US$) $7,500,000 $9,250,000 $11,250,000 $14,250,000 $21,250,000 $63,500,000
Piracy rate 81% 74% 76% 76% 73%
Supplier Losses
Annual (US$) $32,100,000 $26,150,000 $34,950,000 $44,550,000 $56,750,000 $194,500,000
Government Losses
VAT 18% (LEG) $1,972,942 $1,607,241 $2,148,110 $2,738,149 $3,487,990 $11,954,432
Duties 11% (US$) $1,584,713 $1,290,973 $1,725,412 $2,199,344 $2,801,634 $9$X2,076
Total Income Losses (US$) $3,557,655 $2,898,214 $3,873,522 $4,937,493 $6,289,624 $21,556,508
Country Losses
Pounds of Bread 13,044,735 10,626,786 14,202,912 18,104,141 23,061,953 79,040,528
Bus Tickets 14,230,620 11,592,857 15,494,086 19,749,972 25,158,495 86,226,030
Pre College Graduates 4,744 3,864 5,165 6,583 8,386 28,742
Basic Housing 1,423 1,159 1,549 1,975 2,516 8,623
Food Coupons 2,371,770 1,932,143 2,582,348 3,291,662 4,193,082 14,371,005
Based upon that information, they also attempted to determine the extent of
direct losses to the public fist, through lost tax and duties revenue. As the table
illustrates, in 1992, more than $6 million in public revenues were lost due to PC
software piracy. Their analysis did not include lost income tax revenues, which, in
light of the 1992 sales potential of $78 million are substantial. Their study also does
not reflect taxes that could be levied under Chilean law upon certain transactions,
which would yield a 40 percent tax on foreign royalty payments4a At the bottom of
the ADS table, the visual point is made about what the lost government revenue
means in concrete terms, relating to government benefits including food, housing,
education, and public transportation.4
As the table suggests, the losses to public coffers due to piracy of PC computer
programs alone are considerable. In an epoch in which Latin American nations
recognize the need to facilitate heavy investment in the redevelopment of national
infrastructures, the increase in public revenues through a reduction in piracy (that
is already forbidden under existing law) should not be ignored.
Recognizing the magnitude of loss from the illegal acquisition and sale of
software, tax authorities in other parts of the world have begun to express interest in
and dedicate resources to the enforcement of existing authors rights protection of
software. Notably, within the last several months, tax and law enforcement authorities
in the U.S. and Italy have made substantial inroads against piracy, seeking, among
other things, to ensure that transactions involving software are legitimate and
recorded at full value. This is a relatively recent development which promises
dramatic benefits to the public fist as well as to local and foreign authors and their
respective investors.42
DEFICIENCIFB IN LATIN AMERICAN LEGISLATION PROTECTING

INTELLECTUAL PROPERTY RIGHTS
Insignificant Penalties Are Inadequate to Deter Infringement of Intellectual

Property Rights
The penalties imposed by any government for any transgression of a particular

law are meant to serve various functions: punish the infringer, compensate the
wronged party, deter similar behavior by others, and reflect the basic disdain the
society has for transgression of the stated law. The amount of the civil or criminal
fine then embodies the integration of these concepts to stand as a symbol of the
importance of protecting a certain right or property. The existence of laws prohibit-
ing copyright infringement serves as a positive validation of this form of intellectual
property, with the amount of the penalty representing the relative value of the right.
Fines which are nonexistent, small or disproportionate to the gravity of the infringe-
AUTHORS RIGHTS IN LATIN AMFXICA 125
ment convey the impression that the government is not concerned with validating
or protecting these rights.
Moreover, where the fines are inadequate to deter the prohibited behavior or
compensate the copyright holder, such infringement is encouraged to the extent that
payment of a minimal fine does not stigmatize the infringer or serve to impede
violation of the law. For example, if the penalty for the unauthorized reproduction
of computer software were to merely require purchase of original software to replace
what was pirated, there is no disincentive or deterrent to violation of the law; the cost
of violation is no more than the cost that the original software would have been.4
When monetary penalties prove insufficient to deter infringement, the law must be
modified to adequately reflect the importance of the property the government seeks
to protect.
Chile
With the election of President Patricia Aylwyn in 1990, Chile experienced positive
economic growth in a relatively efficient economy in recent years. Notwithstanding
Chiles relatively open market to foreign exports and investments,44 Chile was placed
on the United States Trade Representatives Special 301 Watch List for disturbing
practices in intellectual property. 45 In fact, the IIPAestimated that annual trade losses
for 1990-to U.S. companies only-exceeded $24.6 million, a conservative figure, as
the total included losses for only four copyright-based industries-motion pictures,
computer software, sound recordings and musical compositions.
Chile recently enacted new copyright legislation, but its scope and breadth fails
to remedy many problematic areas of Chilean copyright law.4 Its undervaluation of
copyright can be seen in the low level of penalties: the key criminal provisions are
Articles 79 and 80, which establish that for the unauthorized use of works:
such as the participation for profit in the unauthorized reproduction, distribution

to the public, introduction into the country of or acquisition of stocking with
intent to sell, phonograms, videograms, phonographic disks, cassettes, videocas-
settes, films or cinematographic films or computer programs,
infringers may be subject to criminal fines of five to 50 monthly accounting units (a

value estimating the average monthly minimum salary), the equivalent of US $190
to $1,900, and imprisonment of from 61 to 540 days (or 541 days to 3 years for repeat
offenders) .47 In practice, infringers can almost always avoid prison by applying for a
suspended sentence. Chilean fines for copyright infringement thus pale by world
standards, and result in software piracy rates estimated at 75 percent in what may be
Latin Americas most developed country.
Similarly, while civil penalties for copyright law violations in Chile provide that
the injured party may request the prohibition of the sale, circulation, or exhibition
of infringing copies,48Chilean law establishes no guidelines for the imposition of civil
damages, so judges might be inclined to extrapolate from inadequate criminal fines.

Compared with possible fines of $250,000 and two to five years imprisonment for like
infringements in the United States, it is easy to see how such minimal fines would not
serve as effective deterrents to infringement.
Mexico
It is hoped thatwith the January 1,1994 effectiveness of the North American Free
Trade Agreement (NAFTA), the Mexican deficiencies discussed below will disappear.
Although the NAFTA is considered a self-executing treaty under Mexican law, a
forthcoming copyright law reform is also expected to cure certain defects.
Mexican Copyright Law fails to prescribe effective minimum monetary fines to
adequately deter copyright infringement.4g Mexicos system of imposing of civil
monetary fines falls far short of what would adequately compensate the copyright
holder. Mexican Federal Copyright Law imposes indemnification for material dam-
age to the right holder at the rate of no less than 40 percent of the retail cost of each
infringement or infringing copy, multiplied by the number of illegal copies.50 In real
terms, if a distributor pirates 1,000 copies of a compact disk where the retail cost is
$15, the minimum civil fine is $6,000, or 40 percent of the $15,000 retail price for
the disks. Clearly, this civil tine in no way approximates a level that would actually
serve to deter the prohibited behavior or make the right holder whole.51
Criminal sanctions similarly fail to deter copyright violations as Federal Copyright
Law fines for the unauthorized exploitation of a protected work for profit equal from
50 to 500 times the minimum daily salary in force in the Federal District (15.27
Nuevos Pesos, or approximately US $5.00), or roughly between US $250 to US
$2,500.52 In addition, and further undercutting the effectiveness of the penalties, the
law states that various factors are to be considered in meting out these penalties,
including the economic situation of the infringer.53
Mexicos prison terms of from six months to six years for the exploitation of a
protected work for profit without the consent of the copyright owner (and shorter
jail sentences for lesser included infringements)54 appear to be more serious than,
for example, Chiles equivalent provision. Nonetheless, in practice, these prison
sentences are virtually always commutable.55
Brazil
Rather than protecting computer software under its Copyright Law, Brazil en-
acted a sui genti Software Law in 1987. This law both protects the intellectual
property inherent in computer software, and protects the Brazilian marketplace from
foreign software. In many respects the law prescribes both criminal and civil penalties
for copyright infringement. The criminal fines are not stated, but prison terms run
from six months to two years. Brazils copyright law further provides that the infringer
AUTHORS RIGHTS IN LATIN AMERlCA 127
must surrender to the author or owner of rights all infringing copies he still possesses
and pay for the remainder of the copies he produced, at the price at which they were
sold or may be valued. If the number of copies is not known, civil law prescribes that
the infringer shall pay the value of 2,000 copies in addition to those seized.56
The Business Software Alliance has relied upon this multiplier of 2,000 to seek
substantial damages in Brazil, and this method of calculating damages appears to
have been effective in the battle against piracy in Brazil.
Colombia
Colombia has one of the most adequate, complete and clear authors rights laws
in Latin America. Nevertheless, the level of sanctions, while exceeding those in such
markets as Mexico and Chile, still does not adequately punish the infringer or protect
the author. The Lad provides two to five years in prison and 20 times the monthly
minimum legal salary for:
1. Whoever publishes a literary work . . . , or part of it, by any means, without

the express prior authorization of the right holder.
2. Whoever by any means or medium reproduces . . . or transforms a literary,
scientific or artistic work, without the express prior authorization of the right
holder.
3. Whoever reproduces phonograms, videograms, computer software or cine-
matographic works without the express prior authorization of the right
holder, or transports, stocks, keeps, distributes, imports, sells, offers, acquires
for sale or distribution or provides in any manner such reproductions.
If the supporting material or presentation of the literary work also displays
the name, logo or distinctive mark of the rightful owner, the above-referenced
penalties will increase by half.58
Venezuela
Venezuelan authors rights law historically has been among the least satisfactory
in the hemisphere. Its complete failure to specify criminal sanctions for the unauthor-
ized reproduction, sale or distribution of protected works, including computer
software, has seriously hampered meaningful efforts to eradicate software pirates.
Fortunately, after years of inaction by the Venezuelan Congress, a new copyright law
was enacted in the fall of 1993 which took effect in 1994. While the new law still fails
to provide criminal monetary penalties, it will provide prison terms of from one to
four years for those who reproduce obras de ingenio (creative works) with intent and
without authorization, including computer software. The law sanctions those who
import, store, distribute, sell or otherwise put into circulation illegal reproductions
of creative works.5g
Authors Proposals
We propose that civil and criminal fines in Latin American authors rights laws
be modified to comport with the serious nature of copyright infringement. This can
be accomplished through a series of legislative and enforcement changes: fines must
include not only the price of a version of the original work to replace the pirated one,
but also a deterrence premium, exceeding the retail cost of the work, to effectively
prevent infringement.
The United States provides an example of one of the more extensive and
sophisticated copyright laws, aggressively defending copyrighted property through
legislation and enforcement. To this end, U.S. copyright law allows for recovery of
actual damages and any additional profits of the infringer, or statutory damages
where liability for infringement is found.60 To aid the copyright holder further, the
U.S. Congress created a mechanism by which the copyright owner need only present
proof of the infringers gross revenues to establish the infringers profits, shifting
the burden to the infringer to then prove what portion is not attributable to the
infringement.62 Using this method in Latin America would facilitate the rigorous
enforcement of copyrights by shifting the burden of proof as to the amounts of profit
to the infringer, and not the copyright owner. Moreover, the heavy burden the
infringer carries concerning the division of profits due to infringement may actually
facilitate settlement and cooperative negotiation with the copyright owner.
Latin America needs a system of stiff penalties and means of determining fines
that accurately reflect the costs expended to create, advertise and distribute the
copyright protected work. Ideal copyright provisions would incorporate a choice of
whichever recovery is most appropriate for the copyright owner, an effect largely
achieved under U.S. provisions. The multiple of the monthly and daily wages used
for copyright infringements in Chile, Mexico, Colombia and other Latin American
countries must be upwardly adjusted to ensure that the minimum fine significantly
exceeds the cost of purchasing original copyrighted materials. Moreover, procedural
provisions should establish parameters for imposition of the maximum fines, and not
the minimum possible fine, to send a message to infringers that the days of a slap on
the wrist for violations are gone.
REQUIREMENT OF COMMERCIAL INTENT RENDERS

PROSECUTION UNNECESSARILY DIFFICULT
Many Latin American copyright laws require that unauthorized duplication or

performance of protected works will only constitute infringement if it is undertaken
or performed in pursuit of profit or with commercial intent. This sort of provision is
an example of legislation that has failed to keep pace with technological develop-
ment. In the case of computer software, unlawful duplication for the purpose of sale
AUTHORS RIGJXIS IN LATIN AMERICA 129
should, and in most Latin American countries does, constitute copyright infringe-
ment. At least in theory, there is an effective copyright remedy for wholesale
unauthorized duplication of computer software for sale, otherwise known as retail
piracy.
However, the single most egregious form of piracy, in terms of the magnitude
of losses to computer software authors or publishers, is the internal duplication
of original programs by otherwise legitimate corporations for internal use, but
not for resale. But this form of piracy does not clearly fall within the requirement
of duplication for profit. The computer software industry is put into the anoma-
lous and uncomfortable situation of having to enforce intellectual property rights
against otherwise responsible corporate citizens that frequently resort to the
courts to enforce their own rights when violated. It is even more ironic that the
software industry must sometimes enforce its rights by suing its own largest
customers.
The manufacturing or service corporation, bank or insurance company that
tolerates or even encourages its employees to copy business software in order to avoid
having to purchase original programs has no intention of selling such programs. So
there may be no commercial or profitable intent in the direct sense. However, that
corporation is reducing its expenses by avoiding expenditures for necessary business
software, thereby illegally increasing profits and obtaining a competitive advantage
vis-a-vis more law-abiding competitors. Therefore, profitable intent can be demon-
strated indirectly. But there should be no requirement to overcome such statutory
obstacles in order to prove copyright infringement before Latin American judges,
most of whom have precious little exposure to or knowledge of computer software
and may be inclined to a very strict and narrow interpretation of commercial intent
or profitable intent (especially in the criminal context).
The next most serious form of computer software piracy in terms of actual losses
to the publisher is hard-drive loading by computer dealers who use the unauthorized
loading of software as an incentive to sell their computers. This form of software
piracy or theft can also be problematic when the plaintiff must prove profitable
intent or commercial intent. Often the computer or hardware dealer does not
actually charge for the pirated software he or she has loaded on the equipment being
sold. While it is an incentive, the defendant may insist that he had no profitable intent
with respect to the software, since he was making no profit from the sale of software.
Again, up-to-date copyright legislation can avoid putting the plaintiff through such
knotty and unnecessary problems of proof.
Perhaps the problem, fundamentally, is that civil enforcement in Latin America,
i.e., enforcement by private parties, tends to be so unsatisfactory a remedy because
of inadequate judicial systems and historic resistance in traditionally statist jurisdic-
tions to allowing private citizens to resort to the courts to seek redress. The result is
that the criminal justice system becomes the only realistic route to justice. The
130 QUARTERLY REYIEW OF ECONOMICS AND FINANCE
profitable intent requirement is common throughout the world for economic

crimes such as copyright infringement.
Indeed, a similar requirement is found under U.S. Copyright Law, in which the
United States Government, through the Department of Justice, may file criminal
copyright charges if the infringement is undertaken willfully and for purposes of
commercial advantage or private financial gain.
But there is no such commercial advantage or profitable intent requirement
to establish a prima facie civil copyright infringement case in the United States.
Moreover, U.S. citizens can resort to the courts for very effective civil remedies, such
as injunctions against ongoing infringement that frequently can be obtained within
a matter of days, as well as statutory damages (an alternative to proving actual
damages) that frequently run to $20,000 per infringed work, but can be raised to
$100,000 if the plaintiff proves that the infringement was committed willfully.64
With such an appealing civil alternative, the narrower basis on which criminal charges
can be initiated in the United States in practice proves much less burdensome.
Mexico
Mexican Federal Copyright Law requires that infringement be committed CMZ

fines de Zucro,or with pursuit of profit, to apply sanctions to most violations of the
copyright law. This feature of the Mexican law would appear to encompass not only
the direct pursuit of profit, but also the obtaining of gain indirectly.65 Notwithstand-
ing, the literal construction of the law in the criminal context encourages unfair
manipulation of the law by those who would infringe.@ The profitable intent
restrictions have not presented a serious problem yet, but only because no case
involving unauthorized use in the computer software field in Mexico has yet pro-
ceeded to the indictment phase before a federal judge (the first infringement cases
were filed by U.S. software publishers in January 1992).
Chile
Chilean copyright law is similar to Mexican law with respect to profitable intent.
While there are provisions that sanction conduct without mentioning profitable
intent, 67 the only sanctions provision that expressly mentions computer programs
and that seems most applicable sanctions the following infractors:
Whoever, violating the provisions of this law or the rights protected under the
same, participates for profit in the reproduction, public distribution or bringing
into the country, and whoever buys or possesses with the purpose of selling:
phonographic recordings, phonograph records, videocassettes, films or pictures,
or computer programs.
AUTHOR!? RIGHTS IN LATIN AMERICA 131
Brad
Brazilian sanctions are among the most adequate in the hemisphere, and more
closely approximate the operative regime in the United States. Civil damages in the
amount of 2,000 copies of the work produced by the infringer (in addition to the
value of the copies seized) are available if the number of infringing copies is
unknownGg This provision has no profitable intent limitation. However, Brazilian
7.70
criminal sanctions require reproduction . . . for commercial purposes.
In 1987, Brazil enacted the Software Law which combined adequate, sui generir
protection of the intellectual property inherent in computer software with a large
measure of nationalistic Brazilian market protection. The Software Law has its own
criminal and civil penalties for copyright infringement, including unspecified crimi-
nal fines and imprisonment from six months to two years. It also prescribes civil
penalties including damages, punitive damages (assessed on a daily basis until the
infringement ceases) and injunctive relief.
As with the United States, where the civil damages remedy is adequate, the
commercial purposes limitation becomes relatively less important as an impedi-
ment to justice for the party whose rights have been violated.74
Colombia
Colombia has in many respects the authors rights law that most fully protects
right holders, including software authors. It is noteworthy that there is no profitable
intent or commercial intent requirement in the Colombian law, so there is no need
for the party whose rights have been violated to prove that the other party violated
his or her rights with the appropriate profit-making motive.75
Authors Proposals
The clearest solution to the commercial purposes or profitable intent limita-

tion on sanctions is to establish systems of civil justice that function in a timely and
effective manner, which in most cases do not have such a limitation. A more realistic
near-term solution for Latin American jurisprudence, however, would be merely to
adapt the sanctions to the reality of how computer software is infringed. Since
infringement often occurs internally by corporations or in the process of selling
computer hardware, a mere clarification in a laws definitions could eliminate the
restriction in the following manner:
With respect to the terms commercial purposes or profitable intent, it is

hereby provided that any internal duplication by a business or other entity without
authorization of the copyright holder, whether or not for resale, and any un-
authorized loading of a computer program by a dealer in computer or related
products, whether or not such computer program is intended to sale, will be

deemed to be reproduction for commercial purposes or with profitable intent.
The Lack of Express Provisions Protecting Modern Forms of Authorship

Hampers Development of Novel Forms of Expression
Although the legal protection of software has in recent years come to be generally
recognized in much of the world, whether to afford protection to software as a work
of authorship presents a relatively novel issue, particularly where the courts have little
familiarity or exposure to Informatics technology. The lack of express legal protec-
tion for software has hampered efforts to enforce authors rights in many countries,
and the local and international software industries have suffered as a result. In certain
instances, industry has been unable to obtain criminal sanctions, in others, civil
actions stalled in the courts. Perhaps even worse, it has been necessary to attempt to
present cases only before judges whose interpretations of the authors rights laws
were thought to be favorable, leading to an unreasonable barrier and delaying access
to legal protection.76
In several Latin American laws, authors rights protection broadly applies to
works . . . of human ingenuity, of a creative character, in the literary, scientific and
artistic domains, whatever the form or mode of expression. 77 Substantial interpre-
tation of these provisions has been necessary, however, and, in the cases of software
or cable television transmission, have required costly and uncertain litigation. Fortu-
nately, in most nations considering the issue, the courts have eventually determined
that these new expressions are protectible, using a variety of interpretive devices in
the absence of express provisions.
In the Republic of Panama, the original authors rights law of 1916 did not address
the protection of new forms of expression, such as cable or satellite transmission of
protected works. The countrys accession to international conventions extending
protection to new forms of expression, however, implied the protection under civil
and criminal law for such new forms of expression, particularly in light of Panamas
penal law provisions prohibiting interference with any national treaty obligations
undertaken by the country.7g Nevertheless, this does not provide the certainty
required to encourage investment that would result from express statutory provi-
sions.
In other instances, the statutory law has been drafted to address this concern, not
only by listing known examples of modern categories of works, such as cable
television, radio programming or software and data bases, but also by specifying
either that the listed works are examples, and not exhaustive enumeration of works,
and that protection applies to all forms of authorship, known or to be known.
The disadvantages of a failure to draft statutory provisions in a manner permitting
straightforward interpretation covering a particular category of works is obvious: it
creates uncertainty and contributes to, or prolongs, piracy. Even where executive
AUTHOR!? RIGHTS IN LATIN AMEXUCA 133
decrees have suggested the protectibility of these works, the transitory nature of
regulations, vulnerable to change, requires express statutory protection.
For certainty and uniformity of interpretation, software should not only be
expressly protected under the written law, but also protected as a literary work, to
benefit from a substantial body ofjurisprudence modifying the term. This creates a
flexible context within which courts may interpret the scope of protection to be
accorded to these works against a familiar background. This position has been
embraced by most countries and international bodies considering the question.** It
also provides the benefit of uniformity among different jurisdictions, encouraging
international trade and investment that accrues to the ultimate benefit of many
countries.
Thus, some drafting principles may be derived with respect to the protection of
novel forms of expression, generally, and software in particular:
1. The protection of nauforms of authorship should be provided for by statute;

this should be done in an open-ended manner to encourage the advent of
new forms of expression, works, and technologies.
2. Software is a sufficiently important category of work to merit protection as a
variety of literary work, to allow reference to an existing body of interpretive
law defining the scope of protection.83 Case law has extended protection for
literary works to elements of expression beyond rote copying of text, includ-
ing such elements as the structure, sequence and organization of a work. The
protection for software should not depend on the medium in which the
expression is fixed (for example in read-only-memory chips or devices, floppy
disks, or hard disks), to avoid stunting the development of new software
media, expressions and technologies.
CRITICAL DEFICIENCIES IN THE ENFORCEMENT OF

INTELLECTUAL PROPERTY RIGHTS
Latin American authors rights legislation has evolved in the direction of improved
protection for works such as computer software. However, good legislation is but half
a loaf in achieving adequate protection of intellectual property rights so that tech-
nology is protected. The rest of the loaf consists of firm and consistent enforcement
of intellectual property rights, ideally by private citizens empowered to help enforce
their own rights.
In Latin America, unfortunately, civil law judicial systems in many countries
function slowly, ineffectively and often arbitrarily, a situation exacerbated by the
frequent absence of appropriate civil remedies. Thus the party that seeks to enforce
its intellectual property rights often has few realistic alternatives to the criminaljustice
system. Being forced to depend on governmental authorities is inefficient, often
134 QUARTERLY REVIEb OF ECONOMICS AND FINANCE
renders justice unobtainable because of other demands upon the criminal justice
system, and tends to provide excessive opportunities for corruption and irregularities
in the administration ofjustice.
The Absence of Effective Injunctive and/or Ex Purte Seizure Orders Debilitates

Intellectual Property Enforcement
In the effective enforcement of intellectual property rights, two procedural

mechanisms (which are found in most countries that have inherited the common
law legal tradition) are essential: (1) ex parte search and seizure orders that permit
the defendants premises to be searched and offending materials to be seized without
informing the violator in advance; and (2) an injunctive mechanism that forces the
violator to cease the offending behavior immediately, pending a final resolution of
the matter on the merits.
An exfmrte search and seizure order is necessary in the intellectual property
context, where in most cases the evidence of infringement can disappear upon a
moments notice. For example, if a pirate syndicate is using videocassette copying
devices to make numerous copies of a Disney hit such as Beauty and the Beast,
advance notice to the offending party of an impending search will lead to disappear-
ance of both the copying devices and of the infringing videocassettes. The situation
is even more delicate in the case of illegal duplication of computer software, because
every computer is a diskette copying machine. If a company known to permit or
encourage massive internal duplication of WordPerfect for Windows were informed
in advance of a search by representatives of WordPerfect Corp., the company would
either erase the offending copies or install original copies on top of the pirate copies,
using nothing more than a few keystrokes, and the party that had suffered harm
would be unable to prove the harm and might even face a countersuit.
For this reason, in most countries that have inherited common lawjurisprudence,
a civil law mechanism called the Anton Piller Order has evolved. This mechanism
preserves evidence by authorizing ex parte searches and seizures, but within strict
limitations in order to give maximum reasonable protection to defendants from this
extraordinary remedy.84To obtain the order, the plaintiff must show: (1) avery strong
@ma facie case; (2) that the potential or actual damage suffered is very serious; (3)
that there is clear evidence that the defendants have incriminating goods or docu-
ments in their possession; and (4) that a real possibility exists that the evidence would
be destroyed or removed if the defendant were notified. While the Anton Piller Order
does not exist in the United States, the moving party in Federal Court can obtain the
same result through filing an Emergency Motion for Ex PurteTemporary Restraining
Order and Writ of Seizure.
The injunctive mechanism is necessary so that harm will not continue for years
while a court considers the merits of a case. Often the plaintiff or moving party is
required to post bond in order to compensate the defendant in the event that the
AUTHOR!9 RIGHTS IN LATIN AMERICA 135
court ultimately rules in favor of the defendant. This measure is critical if infringe-
ment in the form of a patent, copyright, or trade secret is occurring, which is likely
to cause immediate and potentially irreparable harm to the plaintiff, the right holder
can force the conduct to be stopped quickly, rather than waiting years for a judicial
decision. In the commercial context, a remedy which only comes after many years of
harm may be no remedy at all for the right holder.
Several Latin American countries lack equivalent civil mechanisms that permit a
search and seizure to be carried out, or order the offending conduct to be halted
immediately.86 This lack of meaningful civil law remedies has forced an undue
reliance on criminal authorities to enforce intellectual property rights.
Mexico
Mexican civil law has a provision for preliminary seizures without notice to the
defendant, and sometimes even before the complaint is filed. The provision unfor-
tunately applies only with respect to real rather than personal property (the latter
would include intellectual property rights) .87 With personal property, the judge is
required to impose preliminary measures different from those specified with respect
to real propertyB8 One provision of the copyright law does empower the judge to
order the seizure of electro-mechanical apparatuses and income (implicitly, from
ticket sales), but that provision appears to limit this power to the public performance
and exhibition context, which would apparently exclude computer software.8g
Two other provisions of Mexican civil procedure theoretically would empower a
judge to enter orders of the nature described above; one provision empowers the
federal courts to order any measure necessary to preserve the status quo.gOThe other
provision permits orders for seizure of goods without advance notice to the defen-
dant.gl These provisions, however, have not been utilized in the intellectual property
context, and judges in Mexico and elsewhere in Latin America tend to have little
knowledge about intellectual property, especially in emerging fields such as com-
puter sofhvare.g2
Exparte search and seizure orders may be obtained under Mexicos authors
rights law pursuant to the Federal Code of Penal Procedures. s Again, however, this
forces an undue reliance on governmental authorities in order to enforce intellectual
property rights, which is common throughout Latin America. Jurisprudentially, the
fact that rights often can only be enforced through resort to governmental power is
an outgrowth of statist, centralized governmental traditions that are increasingly at
odds with economic privatization and the development of market economies
throughout the hemisphere. Nevertheless, the enactment of NAFTA should remedy
this problem in Mexico, as the provisional measures sought are specified in articles
1715 and 1716.
Venezuela
The main problem is the ambiguity of Venezuelan law on this point; Venezuelan
copyright law specifies that in the absence of a complaint (i.e., in the absence of
notice to the other side), the Municipal Judge can carry out the procedures (judicial
and expert inspections) and measures (seizure) deemed necessaryg4 It is entirely
unclear whether the target of these procedures can oppose them.Y5
Chile
Chilean law is ineffective to achieve searches of premises and seizure of infringing

material. As neither copyright nor other intellectual property laws contain special
provisions regarding exparte injunctions or searches, the ordinary Code of Civil
Procedure must be used. Judges frequently fail to authorize search warrants, due to
the lack of a specific procedure, with the result that a complaint must be filed and
the other side is notified in advance of any possible search.g6 Therefore, it is
particularly difficult to demonstrate software copyright infringement in Chile.
Brazil
Brazilian law procedurally provides some of the best remedies in the hemisphere.
In a criminal lawsuit, the copyright holder can obtain injunctive relief, including
search and seizure of software copies illegally produced. Injunctions are also available
in civil actions, and they frequently take the form of a temporary restraining order
to cease the infringement, or order a search and seizure of illegally produced
software. One potential preliminary investigative procedure initiates a criminal or
civil search and seizure, which may have the unfortunate effect of tipping off the
defendant to an impending search/seizure action.
Colombia
The Colombian law contemplates both civil and criminal enforcement of intel-
lectual property rights. The excellent authors rights law contains clear and precise
instructions for the conduct of search and seizure actions, which can serve as a model
for other jurisdictions:
Art. 54The police authorities will make the illegal activity cease, by:
1. Suspension of the infringing activity.
2. Confiscation of the illegal copies, molds, plates, matrices, negatives, supports,
tapes, masks, diskettes, telecommunications equipment, machinery and
other items used in the production or reproduction of illegal copies or for
their commercialization.
AUTHORS RIGHTS IN LATIN AMEXICA 137
3. The immediate closing of the establishment if it is a place that is open to the

public and the suspension or cancellation of its operating license.
Art. 55 The publications, copies, reproductions, molds, matrices, negatives,
tapes, masks or items confiscated will be subjected to judicial inspection with
the aid of the expert, and once it is demonstrated in this manner that they
are illegitimate, they will be destroyed by thejudicial police authorities, in the
presence of ajudicial official and with notice to the defense and the civil party.
Art. 56 The confiscated goods that were used directly or indirectly for the
production, reproduction, distribution, transport or commercialization of
the illegal copies will be attached and seized or officially confiscated, and after
appraisal, those that are not destroyed will be included as part of the criminal
sentence in favor of those harmed by the violation, as indemnification for
damage or they will be disposed of at public auction for the same purpose.
Art. 57 For the determination of the material harm caused by the violation,
the following will be taken into account:
1. The commercial value of the copies produced or reproduced without authori-

zation.
2. The gain that the right holder would have realized if it had authorized the
exploitation.
3. The time period during which the unlawful exploitation took place.
The Colombian scheme is very precise and complete about what the authorities
are supposed to do with infringing materials and how damages are determined. This
precision aids immeasurably in giving satisfaction to the holder of intellectual
property rights that have been violated.
OTHERB- TO SUCCESSFUL ENFORCEMENT OF

INTELLECTUAL PROPERTY RIGHTS IN LATIN AMERICA
There are other legal and judicial impediments faced by individuals and companies
that seek to enforce property rights in Latin America. Many of these problems, if
publicly acknowledged, could be handled without any need for new legislation.
Leaks of Information
In the anti-piracy campaign of the Business Software Alliance in Mexico, various

targets have been leaked by the press in advance of ex fmrte (surprise) criminal seizure
actions. The reporter responsible for most of the scoops indicated that there are
lawyers who hang around the PGR (Federal Attorney Generals Office) all day in
order to obtain information, which is then given or sold to the press. A past Attorney
General even recounted a tale of how even he could not keep confidential a matter
which he had tried to keep close to the vest at the very top level. If ones denuncia or
complaint is filed in the ordinary course in the Mesa de Purtesor Docket Entry/Filing
Room, the chance that the matter will remain confidential is small. If because of
political or other influence one is able to file at a higher level, one may be able to
maintain confidentiality.
The leakage of information has also vitiated various searches in Chile.g8
In Argentina, information frequently leaks from police headquarters, which is a
particularly serious problem in the provinces, that is, outside of Buenos Aires.gg
In Uruguay, local counsel reports that confidentiality is very difficult to preserve
in civil actions, because frequently more than 45 days pass from the presentation of
the complaint to the inspection.
This is a problem that could be eliminated through more tightly controlled filing
systems that restrict the number of government employees with access, and subject
these employees to various forms of control, including internal investigations. Obvi-
ously, many problems of this nature in the administration of justice derive from
inadequate public sector salaries.
Novel Subject Matter for Judiciary
In most of Latin America, judges have had little exposure to technology; techno-
logical advancements, such as computers, often are not used in their daily lives. Thus
there tends to be an undervaluation of the harm caused to the right holder where
legal ambiguity gives little guidance with respect to such issues as damages. Many
judges who lack a clear understanding of the economic harm resulting from their
exercise of discretion and the consequential failure to protect intellectual property
may retard national development.
For example, in Uruguay, judges tend to award very small sums for infringement
of an authors moral rights, perhaps due to a lack of understanding of the importance
of the subject matter or of the technology at issue. In addition, Informatics experts
must be appointed in civil actions, which has caused problems, presumably because
of the lack of a qualified pool of experts, and unclear criteria for their use.
The same problem relating to experts has surfaced in Mexico, where even in
criminal cases, both technical experts and authors rights experts must be designated
by the prosecutor. The prosecutor may in cases designate personnel without adequate
qualification who hold full-time positions, and are paid very small sums to perform
their difficult tasks in connection with infringement actions in the technology area.
The result is that the expert reports take years to issue, if ever, and justice is greatly
delayed.*
In Argentina, counsel reports that both civil and criminal courts lack experience
in the evaluation of damages in intellectual property infringement cases. The plaintiff
AUTHOR!? RIGHTS IN LATIN AMEXICA 139
must prove the amount of damage, and there is no statutory fixed rate as in many
countries or explanation of how to determine compensatory damages.lo3
In addition, in the seven major Latin American markets surveyed,10410cal counsel
report that civil and sometimes criminal procedure imposes numerous formalities,
often of little value, that delay and sometimes deny justice. In general, civil courts
move very slowly, if at all, leaving criminal authorities as the primary route to remedy
the violation of intellectual property rights. Frequently, the criminal authorities are
not responsive because of their focus on more sensational crimes to society. Moreover,
some authors may be reluctant to commence a criminal proceeding.
PRIVATE CONTRIBUTIONS TO THE FUTURE OF SOCIETY
The Role of Extra-Governmental Alliances in Enhancing Respect for Authors

Rights in Latin America
The initial investment in the creation of a copyrighted work is usually substantial,

but recent technological advances make piracy very quick and cheap for the pirate.
For printed, musical, audiovisual, and computer software works, there exist very
efficient technologies for reproduction, legal or otherwise. lo5 As with most codes of
conduct, whether civil, criminal, or ethical, the greatest effect comes about as a result
of self-policing and an understanding of the consequences of a failure to act within
the guidelines.
Government has only a limited ability to represent the interests of authors in
protecting their works, for reasons including those stated above. Additionally, in some
instances government action is limited by a lack of resources or the perception that
the state should not be substantially involved in promoting the well-being of authors
or their particular industries. lo6 Indisputably, the most effective voices are those
whose interests are most directly affected, orwhose interests might benefit most from
107
enhanced authors rights protection, the voices of authors themselves.
The forms of extra-governmental support are as varied as the motives underlying
supporter participation. Vocal proponents of enhanced authors rights protection in
Latin America have included not only those who directly benefit from this progress,
but also those individuals and groups interested in advancing culture, science,
technology, and development. Not surprisingly, in some cases, support for enhanced
authors protection has taken the form of aggrieved authors bringing civil or criminal
legal proceedings to enforce their rights in administrative and court actions. In other
cases, industry chambers or local interest groups have lobbied for law reform and
have even petitioned directly to assert rights on the authors behalf, though such
cases are usually limited to requests for a judicial search or other actions with the
knowledge and permission of the authors.08
Most significant, however, is the role that industry and community organizations
can play with respect to increasing public awareness of authors rights within a society.
Authors may bring legal actions to vindicate their rights, applicable law and substan-
tial legal costs permitting, but the greatest benefits Sr fur are realized through the
public awareness that results from adequately publicizing the enforcement action.
In other words, the mere existence of adequate protection for authors rights alone
is unlikely to have substantial impact upon the actual degree of piracy or compliance
with authors rights in a given country; but broad dissemination of examples of actual
authors rights and the public benefits of adequate protection, can have a substantial
impact.log
Consequently, over the past several years, many resources have been committed
to the public dissemination of information illustrating not only the sanctions for not
complying, but the benejts of observing authors rights protection. In the software
area, for example, many effective public awareness and enforcement efforts have
been the offspring of partnerships between international authors on one hand and
local authors, business, and community groups on the other. Local interests collabo-
rate in such efforts, helping to direct publicity, law-reform work and improvement of
the system of law enforcement through the administrative, policy, and judiciary
functions. In this way, foreign authors, governments, and nongovernmental organi-
zations can contribute resources to the costs of public awareness campaigns and
providing appropriate training in this new field forjudges and public officials. These
groups can also share the benefits of their experience in other countries that have
already taken steps to enhance authors rights protection.
The publicity itself is often locally developed, not only in content, but also, as so
well illustrated by Paulo Freires literacy campaigns more than 20 years ago, in style
and image to capture the most direct, important, and relevant benefits to each
particular country. lo Part of the message in the case of the software campaigns has
been to show some direct benefits to a user of legal products, including availability
of product warranties, technical support, and a freedom from computer-system
corrupting viruses. Pirate copies provide none of these direct advantages and may
result in loss of valuable data and investment of time and other resources.
The broader message, however, is that to compete in an increasingly global
marketplace, one needs to protect local industry yet play by rules that will facilitate
international trade, foster local products and development, and increase economic
efficiency. And in a marketplace increasingly driven by intellectual property, com-
petitiveness results from protection for the authors who actually develop the assets
(both technology and the development of human resources through education and
efficient access to information, which is closely linked with authors rights).
Expressing these messages in a way that addresses local concerns, and assuring
that local needs are being met through law reform and other legal and enforcement
efforts, is a delicate matter. To accomplish this new awareness, the relevant organiza-
tions must enlist the help of professional educators, community and political organ-
AUTHORS RIGHTS IN LATIN AhERICA 141
izers, leaders, and public relations experts, as well as those who influence and drive
legal policies and the administration ofjustice.
CONCLUSION
If knowledge is power, the means of advancing, organizing, analyzing, communicat-

ing, storing, and accessing knowledge and culture are essential avenues to national,
regional, and overall human empowerment. Enhancing protection for authors
rights in the manner most appropriate for the local community is key to assuring the
proper investment of private resources for public good. Within the privatization
model, private citizens and entities holding authorship rights must be able to enforce
their rights efficiently, with minimal dependence on the direct and costly interven-
tion of law enforcement authorities.
NOTE!3
1. Latin American and Caribbean nations attaining or developing substantial reforms to

their copyright laws, through decree or statute in only the last three years include Argentina,
Belize, Bolivia, Chile, Colombia, Costa Rica, the Dominican Republic, El Salvador, Guatemala,
Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela.
Even Cuba has appointed officials to work in the area of authors rights, although at present,
authors royalties devolve directly to the state.
2. Authors rights protection is the subject of the following international and Pan
American conventions: Universal Declaration of Human Rights art. 27, para. 2 (Dec. 10,
1948); Berne Convention for the Protection of Literary and Artistic Works (Sept. 9, 1986, as
amended and revised in Paris 1886, Berlin 1908, Berne 1914, Rome 1928, Brussels 1948,
Stockholm 1967, Paris 1971 & 1979); Rome Convention for the Protection of Artists, Inter-
preters or Performers, etc. (Oct. 26, 1961); Buenos Aires Convention on the Protection of
Literary Works (1910); Universal Copyright Convention of 1952, as amended; Convention for
the Protection of Record Producers (Oct. 29,197l); 1889 Montevideo Treaty on Literary and
Artistic Property; 1939 Montevideo Treaty on Intellectual Property; Inter-American Conven-
tion on Authors Rights in Literary, Scientific and Artistic Works (1946).
In the Americas, the following nations have constitutional clauses addressing protection
for authors rights: Argentina, Brazil, Colombia, Costa Rica, Chile, Ecuador, El Salvador,
Guatemala, the United Mexican States, Nicaragua, Panama, Peru, Paraguay, Dominican
Republic, the United States of America, Uruguay and Venezuela. Additionally, the following
American and Caribbean nations which do not have constitutional provisions have been
signatories to one or more of the international authors rights conventions listed above:
Bahamas (Berne), Barbados (Berne), Bolivia, Canada, Chile, Cuba, Haiti, Honduras, Guyana.
Jamaica, El Salvador and Bolivia are making arrangements to join the Berne Union immi-
nently, and several other area nations are likely to join in the next five years.
3. Copyright protection-the right of the copyrights owner to prevent others from

making copies-trades off the costs of limiting access to a work against the benefits of
providing incentives to create the work in the first place. W, Landes and R. Posner, An
Economic Analysis of Co&right Law, 17,J. of Leg. Studies, 325, 326 (1989).
4. In the United States Constitution patent and copyright clause, Congress was provided
the power to promote the progress of science and useful arts, by securing for limited times
to authors and inventors the exclusive right to their respective writings and discoveries. U.S.
Constitution, art. I, 58.
5. Although individual countries vary on duration of exclusivity to a certain degree,
under the Berne Convention, the authors economic rights in most works are substantially
exclusive for the authors life plus 50 years. Berne Convention, art. 7.
6. E.g., Bakeru. SeZden,101 U.S. 99 (1879).
7. In a famous remark related to this concept, Isaac Newton reportedly stated, If I have
seen further it is by standing on the shoulders of giants. E.g., W. McGrath, Co&right Protection
fm User Interfaces in the Nioeties: Of Perilous Journeys on theDrooping Shoulders of Giants, 4 Software
L.J., 597,599 (Dec. 1991). The underlying idea may nevertheless be protectible under other
intellectual property doctrines, such as patents or trade secrets under case law, national statutes
and international conventions.
8. For example, in Roth Greeting Cards V. United Card Co., 429 E2d 1106 (9th Cir. 1970),
the court determined that public domain text used with original art was entitled to protection,
considered as a whole. Of course, this would not result in exclusivity for the author in the
public domain text by itself.
9. E.g.,Feistv. Rural TeltghoneCo., 111 S. Ct. 1282,129O (1991); WestPublishingCo. v. Mead
Data Central, Inc., 799 E2d 1219 (8th Cir. 1986), cert. denied, 107 S. Ct. 962 (1987).
10. E.g., European Community Council Directive on the Legal Protection of Computer
Programs (May 14, 1991); United States Copyright Act. of 1976, 17 U.S.C. Section 101; A@b
Cornputs Inc. v. Franklin Computq Co+, 714 E2d 1240 (3d Cir. 1983). The software code which
encompasses or fixes the software authors creation itself resembles a literary work, thus at
a foundation level, the majority of courts and policymakers considering the question have
agreed to protect software as though it were a variety of literary work.
11. The problem of distinguishing protected expression from the underlying idea
plagued authors rights even before the advent of computer software. See, e.g., PeterPan Fabrics,
Inc. v. Martin Weiner&$, 274F.2d 487,489 (2d Cir. 1960) (Hand, J.) (Obviously, no principle
can be stated as to when an imitator has gone beyond copying the idea, and has borrowed
its expression. Decisions must therefore inevitably be ad hoc.).
12. Berne Convention arts. 21,28 & 30, Appendix (Special Provisions Regarding Devel-
oping Countries). To date, however, only the Philippines has sought to make reservations
under these provisions.
13. European Community Council Directive on the Legal Protection of Computer
Programs, art. 6 (May 14, 1991).
14. WIPO, Draf Model Provisions f~Legi.slution in the Field of Copy-right, Chapter IV Limita-
tions on Economic Rights (First Session, Geneva, February 20 to March 3,1989). The acronym
for WIPO in Spanish and French is OMPI (Organization Mundial para la Protection de la
Propiedad Intelectual).
15. E.g., Harper and Row Publishers, Inc. v. Nation Enterpises, 471 U.S. 539 (1985) (publi-
cation of unauthorized quotations from former President Fords unpublished manuscript
AUTHOR!? RIGHTS IN LATIN AMJ2RICA 143
relating to facts underlying Fords pardon of former President Nixon; Hustler Magazine, Inc.
v. Moral Majority, Inc., 796 E2d 1148 (9th Cir. 1986) (obscene parody of prominent fundamen-
talist Rev. Jerry Falwell); Walt Disney A-oductions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978)
(publication of bawdy cartoon magazine depicting Mickey Mouse and Donald Duck).
16. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984). In this rare
Supreme Court copyright case, the Court endorsed Congressional balancing test encompass-
ing an equitable rule of reason to determine whether a use of material was fair, or
noninfringing of the authors rights. The U.S. Congress had dictated use of these factors in
making the fair use determination: (1) The purpose and character of the used, including
whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the
nature of the copyrighted work; (3) the amount and substantiality of the portion used in
relation to the copyright work as a whole; and (4) the effect of the use upon the potential
market for or value of the copyrighted work. 17 U.S.C. Section 107. See alsoBerne Convention,
arts. 10 & lObis (fair practice, primarily for teaching and news media).
17. 1990AnnuaZSuru~ ofManufacturers (Washington, D.C., U.S. Bureau of the Census,
1991).
18. S. Siwek and H. Furchtgott-Roth, The U.S. SofYwareZndustry: Economic Contribution in
the U.S. and World Markets (mimeo, Spring 1993).
19. See: S. Siwek and H. Furchtgott-Roth, Copyright Industries in the U.S. Economy:
1977-90 (mimeo, 1992); S. Siwek and H. Furchtgott-Roth, The U.S. Software Industry:
Economic Contribution in the U.S. and World Markets (mimeo, 1993).
20. One might suppose that, in light of the present lack of an ethical technology culture
and well-known legal regime surrounding authors rights protection in that country, a number
of local software authors have determined to commercialize their products in nations provid-
ing a more favorable climate to realize return on the resources invested in their creative works.
21. It bears note that the actual development of software still lends itself to work in teams
of varying sizes; there still exist opportunities for the kinds of small businesses to develop new
programs much in the same way that the principal products and technology of many of the
most successful U.S. high technology companies began in garages less than a dozen and a half
years ago.
22. Interestingly, although during most of the same period it was the position of the
Director of the Authors Rights Ministry that foreign authors software should also be
registered, not a single foreign author sought to avail herself of registration in Costa Rica,
although authors regularly do so in some other Latin American countries.
23. International Intellectual Property Alliance, Copyriiht Piracy in Latin America 5 (Sept.
1992). The United Mexican States was not included.
24. For example, no loss figures were presented for computer program piracy in ten of
the 16 countries; no loss figures were presented for record and music piracy in four of the
countries.
25. Business Software Alliance press release, June 2, 1993.
26. All computer industry loss figures by the IIPA and BSA represent only losses to the
PC-based software industry, and indicate only losses derived from piracy of productivity
software, such as word processing and spreadsheet or graphics applications programs. The
figures do not include piracy of operating system or operating environment software or of
piracy of software on platforms other than PC-type or Macintosh computers. Nor do they
include piracy of upgrades or new software to install on computers that were purchased in
previous years.
27. As recently as March 1993, when WIPO (strategically) held its Eighth International
Authors Rights Congress in Asuncion, there were local reports that a once vibrant, unique
local Paraguayan music culture had nearly vanished due to the inability of local artists to
compete in the predominantly pirate music market. Paraguay recently acceded to the Berne
Convention but has not yet completed reform of its authors rights law.
28. D. Gould and W. Gruben, Should Developing Countries Really Protect IntellectualProperty,
orNot? (Latin America 2000 Nov. 1993 Conference).
29. J. C. Chin and G. M. Grossman, Intellectual Property Rights and North-South
Trade, in R. W. Jones and A. 0. Krueger (eds.), The Political Economy of International Trade:
Essays in Honor of Robert E. Baldwin (1990)) 90-107.
30. Id. at 4, citing C. A. Primo Braga, The Developing Country Case For and Against
Intellectual Property Protection, in W. E. Siebeck, ed., Strengthening Protection of Intellectual
Property in Developing Countries: A Survey of the Literature (1990)) 69-87.
31. According to the Organization for Economic Cooperation and Development (1989),
nationals of developing countries hold only 1 percent of existing patents in the world.
32. R. Sherwood, Intellectual Property and Economic Development (1990).
33. D. Gould and W. Gruben, supra, citing R. Evenson, Survey of Empirical Studies, in
W. Siebeck, sup-a, at 33-46; R Levin, A. Klevorick, R. Nelson and S. Winter, Appropriating
the Returns from Industrial Research and Development, Brookings Papers on Economic Activity
(1987), at 783-820.
34. Id. at 5, citing Tan Bok Hoay, The 1987 Singapore Copyright Act and Its Economic
Consequences, APLA [Asia-Paczjic Lawyers Association Journal] (December 1988)) 111-15.
Quoted in C. A. Primo Braga, sup-a.
35. Id., at 5-6, citing J. H. MacLaughlin, T.J. Richards and L.A. Kenny, The Economic
Significance of Piracy, in R. M.Gadbaw and T. Richards, Intellectual Property Rights: Global
Consensus, Global Conflicts? (1988)) p. 106; United Nations, The Role of Patents in the Transfe of
Technology to Developing Countries, Report of the Secretary General (1964).
36. R. Sherwood, supra.
37. R. M. Gadbaw and T. Richards, Intellectual Property fights: Global Consensus, Global
Conflict? 16,21-27 (1988).
38. D. Gould and D. Gruben, sup-a, at 18.
39. The ADS studies omitted the same categories of additional piracy loss as those
omitted in the IIPA and BSA statistics. See above, note 24.
40. If, for example, foreign authors simply licensed their software without shipping the
software itself, this 40 percent tax would apply.
41. The five exemplary categories are presented in the alternative; each takes the sum
of total income loss to the government and calculates losses in concrete terms as though the
entire government loss were to be applied toward purchase of bread, bus tickets, a public
education or other example.
42. Time and again, substantial enforcement activity and accompanying publicity has
resulted in very substantial increases in Informaticssector revenues, thus preceding commen-
surate growth in taxable receipts. Following the October 1993 initiation of a highly publicized
enforcement action against a multinational company in Mexico, for example, the local
software industry reported immediate increases of 200 to 400 percent in revenues.
43. Moreover, heightened market competition has resulted in more efficient markets
and lower software prices. Damages should be based upon the purchase price at the time of
initial infringement to avoid creating an incentive for the end user to delay purchasing until
prices drop, thus encouraging violation of authors rights.
44. In 1990, the U.S. Department of Commerce characterized Chile as the most open
market in Latin America for U.S. exports and investment. U.S. Department of Commerce,
International Trade Administration, Chile: Fmzign Economic Trends and Their Implications forthe
United States, FET 90-03 (January 1990).
45. Special 301 refers to a provision of Section 301 of the Trade Act of 1974 which
provides authority for the President to impose restrictions on imports in retaliation against
unjustifiable or unreasonable foreign trade practices that burden U.S. intellectual property.
Under this scheme, Priority Foreign Countries are subject to sanctions if they do not reform
the offending activities within a fixed period. There are two lists of countries with offensive
property practices that merit being closely watched, a Priority Watch List and a less egregious
Watch List, and the USTR must reevaluate country classifications at least annually under this
trade provision.
46. Copyright protection in Chile is afforded by the Copyright Statute, No. 17.336 (1970)
and the Copyright Regulations of 1971, with amendments in 1972,1985,1990 and 1992. Chile
is a signatory to the Buenos Aires Convention of 1910, the Universal Copyright Convention
(1952 text), the Rome Convention (1961)) the Geneva Phonograms Convention (1971)) and
the Berne Convention (joined 1970).
47. Copyright Statute, Articles 79 and 80, contain all of the criminal provisions.
48. Copyright Statute, Article 81.
49. President Carlos Salinas de Gortari and his progressive Administration have initiated
welcome changes in Mexicos Federal Copyright Law. Further modifications to Mexican laws
protecting intellectual property are expected as a result of the passage of the North American
Free Trade Agreement (NAFTA), which in Chapter 17 requires Canada, the United States and
Mexico each to meet the stated intellectual property requirements.
50. Federal Copyright Law 1956 as last amended in 1991, Article 146. Additionally, the
injured party may seek indemnification for moral damage where: (1) the infringing party does
not mention the name of the original right holder; or (2) the copyright violation is to the
detriment of the reputation of the right holder.
51. With NAFTAs enactment, Mexico is required to change this provision to satisfy
Article 1715, which states:
Each Party shall provide that its judicial authorities shall have the authority:
(d) to order the infringer of an intellectual property right to pay the right holder
damages adequate to compensate for the injury the right holder has suffered because
of the infringement where the infringer knew or had reasonable grounds to know
that it was engaged in an infringing activity.
(e) to order an infringer of an intellectual property right to pay the right holders
expenses, which may include appropriate attorneys fees. .
52. Federal Copyright Law 1956, as last amended in 1991, Article 135. The minimum
daily salary was increased by 7 percent from 14.27 Nuevos Pesos as ofJanuary 1,1994. While
NAFTA does not prescribe the level of criminal penalties that must be assessed, the following
is stated in Article 1717:
Each Party shall provide that [criminal] penalties available include imprisonment
or monetary fines, or both, sufficient to provide a deterrent, consistent with the
level of penalties applied for crimes of a corresponding gravity.
53. Federal Copyright Law, Art. 144.

54. Id., Articles 138, 139, 143, inter-a&.
55. Id.
56. Copyright Act, 1973, Art. 122, Sole Paragraph.
57. Decree No. 1360 (1989) established that computer programs constitute literary
works under the copyright law, and regulates the registration of computer software.
58. Law No. 44 of 1993, Art. 51.
59. New Venezuelan Authors Rights Law, art. 120.
60. 17 U.S.C. $504.
61. 17 U.S.C. 5504(b).
62. H.R. Rep. No. 941476, 94th Cong., 2d Sess. 161 (1976).
63. 17 U.S.C. Sec. 506(a).
64. Id. at Sec. 506(c), 504(c). Willfully is a term of art that does not require knowledge
of the legal consequences or violation of the law. See, e.g., Engel v. wild Outs, Inc., 644 E Supp.
1089 (S.D.N.Y. 1986) (willful violation found where defendant should have known, but
recklessly disregarded, plaintiffs rights in a photograph).
65. Id., art 75. Unfortunately, this provision of Mexican copyright law, which encourages
the broadest possible interpretation of what constitutes profitable intent, is improbably
located within a provision dealing with radio and television broadcasts, within Chapter V,
which is entitled, Of Rights Pertaining to Public Performance. So once again, ajudge could
conclude that Art. 75 does not apply in the context of computer software, and interpret with
profitable intent very narrowly, to the infringed partys detriment.
66. See Schmidt, Computer Software and the North American Free Trade Agreement:
Will Mexican Law Represent a Trade Barrier. 3 Tex. L. F&u. (1994). NAFTA deals with this issue
indirectly in Art. 1715 by stating that infringing use will give rise to a claim for remuneration,
but that payments may be limited by the circumstances and value of the use:
[W] here a Party is sued with respect to an infringement of an intellectual property

right as a result of its use of that right or use on its behalf, that Party may limit the
remedies available against it to the payment to the right holder of adequate
remuneration in the circumstances of each case, taking into account the eco-
nomic value of the use.
67. Copyright Law of Chile, Law 17.336 as amended, art. 79(a).

68. Id., art. 80(b).
69. 1973 Copyright Act, art. 122, Sole Paragraph; art. 39(l) of Software Law 1987.
70. Law, No. 6895 of December 17, 1980, amending the 1973 Copyright Act.
71. Software Law, No. 7646 (Dec. 18, 1987) as regulated and amended.
72. Id. at Art. 35.
73. Id. at Art. 39.

74. It should be noted, however, that even U.S. courts can require substantial party
resources and long passage of time to secure a final remedy.
75. Law No. 44 of 1993, modifying Law No. 23 of 1982 and Law No. 29 of 1944, arts.
51-52. The same concept, however, may permit some minor exceptions to liability.
76. All of these difficulties have been faced in the software industrys authors rights
campaigns. In Venezuela, where each of these problems arose, a new authors rights law
expressly protecting software as a literary work was just enacted, to take effect in 1994.
77. Art. 1, Law No. 13714 of October 31, 1961 (Peru); Art. 1, Copyright Act of 1933
(Argentina) (similar).
78. In Argentina, for example, the courts determined that software was protected as a
work of ingenuity under the authors rights laws in the context of criminal piracy cases. See,
e.g., Cawa Nro. 34.267porZn.raccidn a la Lqr 11.723 (Buenos Aires Ct. App. Nov. 17,1988). Yet
Argentina still has not approved express statutory protection for software, rendering difficult
enforcement in the civil, end-user context. However, by Executive Decree dated February 3,
1994, Argentina expressly recognized literary works protection for computer software and
data bases.
79. Penal Law Art. 313. See G. Garibaldi, Legislacidn Panatia Sobre Derecho o!e Autor at
331 pass& (1986).
80. For example, the United States Copyright act reads Copyright protection subsists
. . in original works of authorship fixed in any tangible medium of expression, now known
or later developed. . . 17 USC. Section 102(a). A number of Latin American statutes specify
that the listed works are only examples, not intended to exclude forms of expression not listed
in the law.
81. See, e.g., Decree No. 1360 (Colombia 1989) (protecting software as a literary work);
Resolution Directoral No. OOl-89-DIGDA-BNP Art. 17 (Peru-regulations for the registration
with the authors rights directorate of computer software programs in absence of statutory
provisions protecting software).
82. E.g., European Community Council Directive on the Legal Protection of Computer
Programs art. 1, NAFTA art. 1705(l) (a); GATT Agreement on Trade-Related Aspects of
Intellectual Property Rights, Annex III art. lO( 1) (TRIPS Dunkel Text). This position is also
under consideration in the proceeding to adopt a Protocol among member states of the Berne
Union.
83. Art. 2(l) of the Berne Convention.
84. Anton Pi&r KG v. ManufactutingPmcesses Ltd. (1976 Ch. 55)) United Kingdom.
85. Such an order is obtained pursuant to Federal Rule of Civil Procedure 65(b), the All
Writs Act, 28 U.S.C. 1651, and in the case of copyrights, the U.S. Supreme Court Copyright
Rules and Sec. 503 of the Copyright Act, 17 U.S.C. 101 et seq.
86. Most of these countries are members of the Berne Convention, which provides that:
Infringing copies of a work shall be liable to seizure in any country of the Union where the
work enjoys legal protection. Berne Convention, art. 16(l). The Draft Final Act of TRIPS
states: The judicial authorities shall have the authority to order a party to desist from an
infringement. . . TRIPS (Dunkel Text) art. 44( 1).
87. Mexican Federal Code of Civil Procedures, art. 235, clause II.
88. Id., art. 238.
89. Mexican Federal Copyright Law, arts. 146 & 79.
90. Mexican Federal Court of Civil Procedures, art. 379.

91. Id., art. 389.
92. The enactment of NAFTA should require changes to Mexican procedure to comply
with the following NAFTA requirements:
Article 1716 states:
1. Each Party shall provide that its judicial authorities shall have the authority to order
prompt and effective provisional measures:
(a) to prevent an infringement of an intellectual property right, and in particular
to prevent the entry into the channels of commerce in their jurisdiction of
allegedly infringing goods. ..
(b) to preserve relevant evidence in regard to the alleged infringement.
****
4. Each party shall provide that its judicial authorities shall have the authority to order
provisional measures on an expurte basis, in particular where any delay is likely to
cause irreparable harm to the right holder, or where there is a demonstrable risk of
evidence being destroyed.
93. Mexican Federal Copyright Law, art. 150.
94. Venezuelan Copyright Law, art. 99.
95. Letter, Antequera Parilli Rodriguez & Asociados, Caracas, Venezuela, Sept. 6, 1993.
96. Letter, Marinovic-Gutierrez Abogados, Santiago, Chile, August 20, 1993.
97. 1973 Copyright Act, art. 123, Code of Civil Procedure, arts. 797 & 798.
98. Letter, Marinovic-Gutierrez Abogados, Santiago, Chile, Aug. 20, 1993.
99. Letter, Estudio Bossi Abogados, Buenos Aires, Argentina, Aug. 19, 1993.
100. Letter, Estudio Juridico Dr. Eduardo de Freitas Straumann, Montevideo, Uruguay,
Aug. 16, 1993.
101. Id.
102. Experience of the Business Software Alliance in the Mexican copyright enforcement
campaign on behalf of Aldus Corp., Autodesk, Inc., Lotus Development Corp., Microsoft
Corp., WordPerfect Corp. and Novell, Inc., in which not one expert report issued in any case
between the filing of the first cases in January 1992 and September 1993.
103. Letter, Estudio Milli, Buenos Aires, Argentina, Aug. 19, 1993.
104. Argentina, Brazil, Chile, Columbia, Mexico, Venezuela and Uruguay.
105. For this reason, WIPO has written a model provision directed toward the tracking
of, use, and levying of potential royalties on such devices to protect authors rights in their
original works. See WIPO, DTafl Model Pmvisions for Legislation in the Field of Copyright, Sections
54-56.
106. The underlying reasons for limitations on the government role are numerous, and
those mentioned here are not universal. Some countries have expressly charged their
governments with responsibility for promoting authors rights activities. For instance, while
Paraguay does not have a well-developed authors rights law, it specifically has laws, as do other
Latin nations, directed to encourage book publishing. Ley No. 24 de 12 de Septiembre 1993
De Foment0 de1 Libro.
107. Of course, the ability of authors to protect their own rights depends upon the
existence of a functioning civil law system and judiciary at the very least. In a recent example,
renowned author Gabriel Garcia Marquez made public his dissatisfaction with the results of
a pending legal case involving alleged fraudulent publication of his works, threatening
withdrawal of all rights to publish in his native Colombia. While the courts nonfinal decision
was itself not available to the public, and thus the grounds for the courts action unclear, local
officials and authors groups scurried to assure the public that authors rights were strongly
observed and enforced under Colombias law.
108. When a group or individual not formally empowered to represent the legal right
holder acts to enforce the latters rights, however, significant practical and legal problems
result. If such actions are permitted, or if the alleged infringer accedes to the demands of such
a third party, the alleged infringer cannot secure an enforceable promise of abandonment or
release from the cause based upon a compromise or settlement with the unauthorized
infringer of the authors rights. Moreover, the ultimate aim- encouraging authors to invest
in development of or creating access to new works-is not served since the resulting recovery
may never be paid to the author or her authorized legal representative. Unfortunately, there
have been some attempts to use authorizing legislation for collective authors societies for the
purpose of extorting royalty payments from consumers or users of a work without the
commensurate authorization from the authors themselves. Under Mexicos authorizing
legislation, for example (see Chap. VI, art. 93 et seq., Federal Authors Rights Law), a local
group has approached software users for royalty fees, without authorization by the authors.
The cases discussed here are to be distinguished from those involving the assertion of
authors rights by a duly authorized third party such as the legitimate collective authors rights
societies that exist for the benefit of musical composers. Third party groups Rave also played
a useful role in petitioning for courts to develop evidence for authors benefit by conducting
official inspections for the use of infringing copies based upon well-grounded suspicions that
authors rights were being infringed.
109. For most forms of piracy, practical logistics suggest, and experience has shown, that
even using their best efforts, authorities can act only upon a very small percentage of existing
or new cases of violation of authors rights. Authors will rarely recover a significant percentage
of the economic damage they have suffered through such actions. And even a large dedication
of resources cannot have the dramatic effect that can be achieved by a broadly held self-interest
in the human, economic, and cultural future of ones nation.
110. See P. Freire, Pedagogyofthe C$$-ressed (B. Myra trans. 1970).

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The QuarterlyReviewof Economics aud Fiance, Vol.

34, Special Issue, Summer 1994, pages 117-149

Authors Rights in Latin America

THE CONTOURS OF INTELLECTUAL PROPERTY RIGHTS

AUTHORS RIGHTS INDUSTRIES IN LATIN AMEFUCA

LATIN AMERICAN LOSSES TO COPYRIGHT INDUSTRIES

Tabb 1. U.S. TRADE LOSSES DUE TO PIRACY IN SIXTEEN CENTRAL AND

TOTAL 1991 LOSSES: $660,847,000

Not~r: ma. = not available

Table 2. SOFIWARE PIRACY IN LATIN AMERICA-1992

country % of Piracy Dollar Losses

Other Latin American countries* 72 million

N&=x Based on industry data and market analysis.

*Spec& country data not available.

Soune. Busmess Software Alliance, reprinted by permission

SUPPORT FOR PROPOSITION THAT IMPROVED INTELLECTUAL

David M. Gould and William C. Gruben examined whether or not developing

Benefits to the Public Through Improved Authors Rights Protection:

A program of improved enforcement of intellectual property rights not only may

DEFICIENCIFB IN LATIN AMERICAN LEGISLATION PROTECTING

Insignificant Penalties Are Inadequate to Deter Infringement of Intellectual

The penalties imposed by any government for any transgression of a particular

such as the participation for profit in the unauthorized reproduction, distribution

infringers may be subject to criminal fines of five to 50 monthly accounting units (a

damages, so judges might be inclined to extrapolate from inadequate criminal fines.

1. Whoever publishes a literary work . . . , or part of it, by any means, without

REQUIREMENT OF COMMERCIAL INTENT RENDERS

Many Latin American copyright laws require that unauthorized duplication or

profitable intent requirement is common throughout the world for economic

Mexican Federal Copyright Law requires that infringement be committed CMZ

The clearest solution to the commercial purposes or profitable intent limita-

With respect to the terms commercial purposes or profitable intent, it is

products, whether or not such computer program is intended to sale, will be

The Lack of Express Provisions Protecting Modern Forms of Authorship

1. The protection of nauforms of authorship should be provided for by statute;

CRITICAL DEFICIENCIES IN THE ENFORCEMENT OF

The Absence of Effective Injunctive and/or Ex Purte Seizure Orders Debilitates

In the effective enforcement of intellectual property rights, two procedural

Chilean law is ineffective to achieve searches of premises and seizure of infringing

3. The immediate closing of the establishment if it is a place that is open to the

1. The commercial value of the copies produced or reproduced without authori-

OTHERB- TO SUCCESSFUL ENFORCEMENT OF

In the anti-piracy campaign of the Business Software Alliance in Mexico, various

Novel Subject Matter for Judiciary

PRIVATE CONTRIBUTIONS TO THE FUTURE OF SOCIETY

The Role of Extra-Governmental Alliances in Enhancing Respect for Authors

The initial investment in the creation of a copyrighted work is usually substantial,

If knowledge is power, the means of advancing, organizing, analyzing, communicat-

1. Latin American and Caribbean nations attaining or developing substantial reforms to

3. Copyright protection-the right of the copyrights owner to prevent others from

53. Federal Copyright Law, Art. 144.

[W] here a Party is sued with respect to an infringement of an intellectual property

67. Copyright Law of Chile, Law 17.336 as amended, art. 79(a).

73. Id. at Art. 39.

90. Mexican Federal Court of Civil Procedures, art. 379.

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Authors' Rights in Latin America

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