Volume 5, Number 23, Page 3

New Copyright Law in Paraguay

by Cristobal González of Berkemeyer Attorneys and Counselors

The new Copyright and Related Rights Law brings Paraguayan legislation in line with international conventions on the topic introducing considerable modifications to the current legal status.

The proposed legislation has the approval of both chambers of Congress (August 27, 1998) and is currently awaiting the President’s approval. It shall cover all aspects of copyrights and related rights, using comparative law as its main source, as well as the most modern legislation and conventions on the topic.

Following international conventions on the subject, the aim of the new copyright law is the protection of all kinds of creative works regardless of class, means of expression, merits or purpose, author’s nationality, author’s domicile or that of the title holder, or the location of the publisher.

Exclusive protections shall be granted to means of expression by which an author’s ideas are described, explained, illustrated or incorporated.

The enjoyment or exercise of the rights recognized in this law is not subject to the requirement of registration or compliance with any other type of regulation.

Protected works, according to the new law, may also be subject to other regimes of intellectual property protection, such as trademarks, patented inventions, industrial models among others.

Special Provisions Applicable to Certain Works:

Software Programs

Software programs shall be protected in terms equal to those protecting literary works. Such protection shall extend to all forms of expression, including operative as well as applicative programs, either in the form of source code or object code. The program producer is the natural or juridical person that has undertaken the initiative and has the responsibility of the work.

Other

The law provides for the protection of audiovisual works, radiophonic works, architectural works, works of art and journalistic articles.

Likewise, it sets forth the right of radio broadcast organizations to authorize and forbid the retransmission of their broadcast emissions through any means or procedure, as well as the right of phonogram producers, their interpreters or performers.

Law No. 1328 contains a section designed to protect folklore, stating that published or unpublished folklore expressions shall be permanently protected from inadequate exploitation, suppression, and alterations.

Contracts

The present law-contains rules that regulate the following contracts:

1. Publishing contracts

2. Pub1ishing contracts for musical work

3. Contracts regulating theatrical representation and musical performances

4. Phonographic inclusion contracts

5. Broadcasting contracts

Rights Granted

An author enjoys the exclusive right to use his work under any form or procedure and obtain a profit thereof. During the author’s lifetime, a portion amounting to three-fourths of the product corresponding to the profits related to his work, shall remain free from attachment.

Patrimonial rights include the exclusivity to carry out, authorize and prohibit:

1. The reproduction of the work by any means or procedure,

2. The public communication of the work by any means,

3. The public distribution of copies of the work,

4. The importation into national territory of the work’s copies, independent of the fact that the author has or has not authorized the production of such copies in the country of origin,

5. Translation, adaptation and arrangements or any other transformation of the work, and

6. Any other kind of use of the work not contemplated by the Law.

Duration

“Patrimonial” rights, in general, are for life plus seventy years after the author’s death. The rights are transmissible to heirs in accordance with the Paraguayan Civil Code.

Patrimonial rights corresponding to collective works, software programs, audiovisual and radiophonic works shall terminate sixty (60) years after the first publication.

Registry of Copyrights and Related Rights

According to Law Nø 1328/198, the National Copyrights Department (Direccion Nacional del Derecho de Autor) under of the Ministry of Industry and Commerce, shall manage the national registry of protected works stated herein. In addition, conventions and contracts modifying, transfering, or waiving patrimonial rights may also registered.

The effect of registration is merely declaratory and not constitutive, and consequently, omission does not prejudice the enjoyment or exercise of the rights recognized in the present law.

Judicial Actions

Title holders of any of the rights set forth in the law, their representatives or entities in charge of the collective management, without prejudice to other activities they are entitled to, may request the discontinuance’ of the offender’s illegal activity and demand damages for material loss and moral wrong caused by the reach or the recovery of the utilities obtained in the commission of the illegal act.

Offenses, misdemeanors and felonies included in the law are private penal action offenses and, consequently, measures proposed to obtain the discontinuance of such offenses may not be initiated ex officio.

Furthermore, the law establishes sanctions according to the seriousness of the violation or offense committed.

Frontier Measures

In harmony with TRIPS (adopted by Law 444/94), Law No. 1328 states that the judge, at request of the National Copyright Department, the person legally entitled, his representative or entity in charge of its management, may order the immediate execution of necessary precautionary measures to prevent the commission of a breach, its continuance, or repetition of one already committed. Noteworthy it is to say that the action against a breach of copyright cannot be initiated ex-officio since it is not considered a public criminal action offense, unlike the previous law.

The title-holder of a right protected by this law, in possession of knowledge and well-founded motives relating to the preparation of importation or exportation of products that infringe the said right, may request customs authorities the suspension of the import or export operation in accordance with the conditions applicable regarding guarantees or precautionary measures.

To obtain additional information, please contact Cristobal González cristobal.gonzalez@berke.com.py