Intellectual property is the set of rules and rights that regulate the creations made by the human intellect, which is divided into two branches: copyright and industrial property, indicates Fernando Díaz-Durán, a lawyer specializing in Intellectual Property.
Copyright protects and recognizes creators, persons whose name or pseudonym is recorded in original literary, artistic or intellectual worksand the prerogatives of a moral or patrimonial nature over them and that may be disclosed or reproduced by any means, explains the writer, editor and essayist Gustavo García Fong, from the legal analysis department of the Association for Research and Social Studies (Asies ).
These rights are regulated by the Copyright and Related Rights Law, decree 33-98, by the Industrial Property Law, decree 57-2000, and by the Berne Convention to which Guatemala is a party.
Author’s right, continues García Fong, includes moral and patrimonial rights. The former refer to recognizing the “paternity” of the author over his work and respect for it. These give the author the power to demand that his name and the title of the work be recognized when it is cited or published.
You can also oppose modifications or adaptations of the work that do not have your authorization, leave the work unpublished or publish it anonymously or under a pseudonym, and modify it at any time or withdraw it from circulation. It must be taken into account that these rights arise from the moment of the creation of the work, without the need for registration, and they correspond to the author in a personal and inalienable way, which prevents them from being alienated and seized, they are imprescriptible and of unlimited duration, he adds.
Property rights, on the other hand, refer to to the power to take advantage of and economically dispose of the product of intellectual creation by any means. Unlike the previous ones, these are waiverable, attachable and prescriptive, says García Fong.
“The law protects not only the authors who write the lyrics or music of a piece, but also to the interpreters, performers and producers of phonograms, which is known as related rights”, explains Karen Culajay, general director of musicarts.
According to him Copyright Department, of Intellectual Property Registry (RPI) of the Ministry of Economy, in the last three years there have been admissions 550 requests to grant copyrights (185 in 2019, 169 in 2020, and 196 in 2021) and 541 were granted (156 in 2019, 184 in 2020, and 201 in 2021).
Industrial property protects distinctive signss —brands, advertising signs, trade names, among others—, business secrets, invention patents, utility models and industrial designsindicates Díaz-Durán.
An invention patent is an exclusive right granted by the State to an individual or legal person for the protection of an invention and that provides exclusive rights that will allow it to be used and exploited in Guatemala, which prevents third parties from misusing it without your consentdetails the Department of Patents and Industrial Designs of the RPI.
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The main objective of patents, adds Lorena Escobar, director of legal advice at the National Secretariat of Science and Technologyis to encourage creation and innovation, by allowing the inventor, who has spent energy and resources to create something new, to get a reward. To consider a creation as an invention, this must be new, that it has not been disclosed or known to the public before the presentation to its registry, and that it has not been tested in the industry or accepted and accepted by manufacturers, represent an advance or qualitative leap in the elaboration of the technical rule, be capable of industrial application and have a specific, substantial and credible use in the productive activity, Escobar points out.
“This protection is territorial, so registration must be managed in each country in which it is to be applied,” says Díaz-Durán.
According to records from the Department of Patents, in 2019, 30 invention patents were registered; in 2020, 57; in 2021, 61, and until September 9 of this year, 40.
Data of the World Intellectual Property Organization, of 2021 indicate that globally lhe majority of applied for and published patents deal with electrical engineering, which includes electronic devices, telecommunications and computer technology, and biotechnology, says Díaz-Durán.
“The majority of patents requested in Guatemala are foreign, so the trend is the same for our country,” he adds.
Common problems
In relation to copyright, the problems that arise are the reproduction of a work, by any means, whether printed, photographic, audiovisual or electronic, without citing the source from which the information is taken, or doing so without the authorization of the author, Garcia Fong points out. In addition, publicly communicating the work by any means, transforming or distributing it, without the author’s permission.
In the case of invention patents, The main drawbacks occur when the holder does not pay the annual fee to maintain its validity, which has a maximum term of 20 years, provided that he has paid his annual fees, an aspect that the holder often forgets and generates, as a consequence, the extinction of full right of the validity of the patent, exposes the Department of Patents and Industrial Designs. To this is added when the owner is copied his invention without having the respective authorization, by not having a contractual license for use. Díaz-Durán emphasizes that the main damages worldwide are piracy and counterfeiting.
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royalty payment
To use a song for a movie, record it for a record, upload it to digital platforms, or play it in stores for commercial purposes, for example, the authorization of the creators is needed —authors of the lyrics, music and producer—, for which a license is granted in exchange for a remunerationindicates Culajay, who affirms that a third part of the income of the artists comes from copyright.
Due to the large number of artists and songs, companies or collective management entities are set up, such as Musicartes, Association of Authors, Publishers and Interpreters of Guatemala (IEA) and Guatemalan Association for Management of the Industry of Phonograms and Related Producers, so that author’s rights are recognized through the issuance of licenses, especially the repertoire of artists associated with the businessmen who use the works, who pay rights according to a tariff, and are remunerated with equity. At Musicartes, says Culajay, active associates receive an annual amount that varies each year.
Margarita de Cáceres, director of AEI, states that this company, In addition to protecting the works worldwide and the payment of royalties for their use, it provides its members with life insurance, medical and funeral services, among other benefits. However, the biggest obstacle to copyright in the country is the ignorance of the law and the refusal of some music users to obtain authorization for the use of the works.
As for printed works, Raúl Figueroa Sarti, director of F&G Editores, says that publishersThey usually pay the author 10 percent of the selling price of the book. “Ideally, the publisher that wishes to publish a work establishes an agreement with the author. If he died, with the heirs of the rights, which are valid for 75 years after the death of the author, during which any publisher is obliged to pay royalties for the commercial use of the work. Once this period has elapsed, the work becomes public use, but no one can alter it. “
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In Guatemala, payment for copyright is minimal; instead of receiving something for the publication, most authors pay to have their work published, due to market limitations”, he points out. Royalties are also paid in kind, with books, if agreed with the author, he adds, showing that he is not aware of legal conflicts between authors and publishers. However, there are cases in which some printers reproduce books illegally and sell them at a very low price, since they do not pay distribution costs, taxes or copyrights.
“In Guatemala there is a lack of resources to investigate piracy and it is not easy to determine the elements that allow to prove that a crime was committed when printing books without authorization, nor is there support from the State to carry out this persecution,” he says.
Playwright and writer Ricardo Martínez argues: “Guatemala is not a country where playwrights can enrich themselves with their cultural production. Sometimes we recover the costs of theatrical productions, But what situation will we be in if we start a legal process because someone appropriated our works, if the profits are negligible? It would be a sterile legal battle. In Guatemala we create works for domestic use and we have no prospects that we can obtain intellectual recognition for the rights of the same in other countries. We artists are very demanding and the recognition that the public gives us is essential for us and that they give us the corresponding credits. We do not intend to enrich ourselves with this, but we do want to contribute something to the national dramaturgy”.
Copyright violation
- According to article 274 of the Penal Code (CP), the violation of copyright is a crime —except in cases contemplated in laws or treaties on the matter to which Guatemala is a party— that will be punished with imprisonment for one or six years and a fine of Q50 thousand to Q700 thousand.
- According to article 275 of the Criminal Code, whoever violates industrial property rights, protected by an invention patent or by a utility model registration, will be punished with imprisonment for four to six years and a fine of Q50 to Q100 thousand.
- In addition, the law establishes the repair of the damage, in the case of industrial property, through the payment of up to 10 times the value of the product for each infringing product.
- According to the Intellectual Property Law, it corresponds to the Public Ministry (MP), which has an Intellectual Property Section Prosecutor’s Office, to exercise criminal action against those responsible for crimes and misdemeanors in matters of Industrial Property in the CP.
- Likewise, the law contemplates measures to stop the violation of copyright, although in practice they are not very effective, since the MP receives the complaints and tries to follow up on them, but it is necessary to strengthen them, points out Karen Culajay.
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