Copyright in Europe and Latin America: Duration and Inheritance

March 2021

Copyright is arguably the basis of Intellectual Property as a whole, defined by the World Intellectual Property Organization (WIPO) as all creations of the mind: inventions, literary and artistic works, as well as symbols, names and images used in commerce, which are legally protected by IP rights.

However, copyright, unlike trademarks and patents, has always been the subject of treatment by other professional sectors outside the law. For this reason, it is useful to take a legal approach to what we mean by copyright in the Ibero-American sphere.

In legal terminology, WIPO is once again responsible for providing us with the meaning of copyright, defining it as that which is used to describe the rights of creators over their literary and artistic works.

BUT… WHICH WORKS ARE SUBJECT TO PROTECTION?

The Berne Convention, originally drafted in 1886, is the Convention for the Protection of Literary and Artistic Works, to which 179 countries have adhered, and in its second article, it explains that:

The terms “literary and artistic works” include all productions in the literary, scientific and artistic fields, whatever may be the mode or form of expression, such as:

  • books, pamphlets and other writings;
  • lectures, addresses, sermons and other works of the same nature;
  • dramatic or dramatic-musical works;
  • choreographic works and pantomimes;
  • musical compositions with or without words
  • cinematographic works, to which are assimilated works expressed by a process analogous to cinematography;
  • works of drawing, painting, architecture, sculpture, engraving, lithography;
  • photographic works, to which works expressed by a process analogous to photography are assimilated; [and] works of applied art; works of applied art, to which works expressed by a process analogous to photography are assimilated.
  • works of applied art; illustrations, maps, plans, sketches and plastic works relating to geography, topography, architecture or science.

All these creations of mind are those that IP Law, as copyright, is responsible for protecting, and furthermore, without an obligation to register them in front of any authority. In other words, the legislation protects these works from the moment of their creation – it is sort of an automatic protection – so that the recognition of copyright does not require compulsory registration, although it is highly recommended.

HOW LONG DOES COPYRIGHT PROTECTION LAST?

One of the most important questions for creators of any of the above-mentioned works is how long the law allows them to protect their works. Although the answer is not unanimous in all countries, there is one point on which they all agree, and that is: the whole life of the author. After that, the duration of protection varies according to the territory.

At the top of the ranking is MEXICO, where the duration of copyright protection is the whole life of the author, and 100 years after his or her death.

It is followed by HONDURAS, where the term of protection is the whole life of the author and 75 years after his death.

In the EUROPEAN UNION, URUGUAY, COSTA RICA, CHILE and ARGENTINA the term of protection is the whole life of the author, and 70 years after his death (and the same in the USA).

And, in the ANDEAN COMMUNITY (BOLIVIA, COLOMBIA, ECUADOR, PERU) the term of protection is for the the whole life of the author, and 50 years after his death.

AND WHAT HAPPENS AFTER THAT PERIOD EXPIRES?

Or, to put it another way, how and by whom is copyright inherited? Before answering this question, it is worth clarifying that copyright comprises two types of rights:

  • economic rights, which allow the right holder to obtain financial compensation for the use of his works by third parties; and,
  • moral rights, which protect the author’s non-pecuniary interests, i.e. the very personal rights through which the link between the author and his or her work, in which the author expresses his or her personality, is safeguarded. Therefore, these rights are inalienable and non-transferable and, consequently, as such, they cannot be inherited, with the exception of the “but” that we will see below.

Since, once the author has died, he cannot defend his moral rights himself, the law allows certain persons to be authorized by law to exercise the powers inherent to these rights. Thus, unlike economic rights, whose inheritance is governed by succession “post mortem” as with any other asset that the deceased person might leave as an inheritance (a house, money, debts…) to be distributed according to the legislation in force in each country, moral rights, as we said, are not inherited as such, but are exercised by the person that the author has designated by last will and testament. This means that it can be any person in whom the author has decided to place his trust, regardless of whether or not he is part of his family, and without the law obliging him to be any specific person. However, if no one has been designated, the exercise of these rights will correspond to their heirs and, ultimately, to the State, local corporations and/or cultural institutions.

However, obviously these inheritable rights – the economic rights – do not last forever, and once the period legally established by the legislation of each specific territory has elapsed, the works fall into the public domain. In other words, anyone may use them without the need to apply for a license, the aim being to allow society access to these works as an expression of culture.

This is what has happened this past year 2020, for example, with the case of the famous poet Antonio Machado, whose works have passed into the public domain after the legally established time has elapsed following his death. And there is no shortage of literary genius that this poet has left for us to enjoy, and so that, from now on, we can use them, because as he himself said: “Today is always still”.

Sara del Rio