In terms of copyright, the rights inherent to a work are classified as moral and economic rights; the former are non-transferable, since they are focused on recognizing as such the author of a work, that is, that the latter is only attributable to the person who created it, so that the author will always have the right to have his or her name appear as the author of the work, and therefore, the author will always have the right to have his or her name appear as the author of the work, and the author will always have the right to have his or her name appear as the author of the work. creator of the corresponding work. In turn, this type of right grants the author the power to decide whether or not the work is to be disclosed and, if so, the terms and conditions under which it may be disclosed.
On the other hand, economic rights are of an economic nature and grant the right to disseminate or transmit the work, by any means permitted by law, for commercial purposes and contrary to moral rights, are transferable provided that the requirements set forth in the law are met. In other words, the holder of the economic rights of a work may be a person other than the author. In fact, the Law foresees certain cases in which the economic rights correspond to the author. at all times to a person different from the author, as in the commissioned worksas explained below.
However, it is important to mention the limitations set forth in the Federal Copyright Law (LFDD) that must be observed in the assignment of economic rights:
This royalty shall be paid by the person who makes the communication or public transmission of the work, either directly to the author or to the so-called "....collecting societies"(non-profit legal entities, whose purpose is to protect the rights of authors, as well as to collect and deliver the amounts that correspond to them according to the Law, for the creation of their works).
The corresponding percentage shall be agreed directly, on the one hand, between the author or, as the case may be, the Collective Management Society and, on the other hand, the persons who perform the communication or public transmission of the works; in the absence of an agreement, the National Copyright Institute shall establish a tariff in accordance with the procedure provided for in the Law.
However, as mentioned above, the law provides for certain exceptions, where the economic rights do not correspond 100% to the author of the work, as in the following cases:
In this case, there is a person (commission agent) who has the initiative or a specific idea to carry out a work, whatever its nature may be, provided that it is subject to protection under the law; and for this purpose, hires the services of personnel trained or with the necessary skills to materialize such idea in exchange for a consideration.
In fact, the person who will enjoy the economic rights with respect to the work resulting from the above is precisely the commission agentwho shall have the powers of disclosure, integrity of the work and collection.
It is worth mentioning that the person who participates in the production of the work, in a remunerated manner, shall have the right to be expressly mentioned as author, artist, interpreter or performer, as the case may be.
However, in the case of musical works, the person who participates in the work shall also be entitled to the payment of royalties for the communication or public transmission of the work, being an unwaivable right.
However, if there is no individual employment contract duly signed by both parties (employer and employee) or if it is not clear from the terms and conditions thereof that the employer instructs the employee to perform work - protectable under the LFDD - the economic rights will correspond to the employee, regardless of whether it was the result of an employment relationship and by express instruction of the employer.
By virtue of the above, it is important that the employment contract be very clear and precise in that the employer is paying a consideration to the employee for the purpose of carrying out a work or any of the figures provided for in the LFDD.
RATIONALE AND CRITERIA
The owner of the economic rights may freely, in accordance with the provisions of this Law, transfer his economic rights or grant exclusive or non-exclusive licenses of use.
Any transfer of economic rights of authors shall be onerous and temporary. In the absence of agreement on the amount of the remuneration or the procedure for fixing it, as well as on the terms for its payment, it shall be determined by the competent courts. The acts, agreements and contracts by which economic rights and licenses of use are transferred shall invariably be concluded in writing, otherwise they shall be null and void.
Acts, agreements and contracts by which economic rights are transferred shall be recorded in the Public Registry of Copyright in order to be effective against third parties.
Any transfer of economic rights shall be in favor of the author or the owner of the economic right, as the case may be, a pro rata share of the income from the operation concernedor a fixed and determined remuneration. This right cannot be waived.
Article 33.- In the absence of express stipulation, All transfers of patrimonial rights are considered to be for a term of 5 years. Only (sic DOF 24-12-1996) may exceptionally be agreed for more than 15 years when the nature of the work or the magnitude of the investment required so justifies.
Article 34. The production of future work may only be the object of a contract when it is for a specific work, the characteristics of which must be established in the contract. The global transmission of future works is null and void, as well as the stipulations by which the author undertakes not to create any work.
The exclusive license shall be expressly granted as such and shall confer on the licensee, unless otherwise agreed, the right to exploit the work to the exclusion of any other person and to grant non-exclusive authorizations to third parties.
The owners of copyright and related rights may demand compensatory remuneration for the making of any copy or reproduction made without their authorization and without being covered by any of the limitations provided for in Articles 148 and 151 of this Law.
Article 83. Unless otherwise agreed, the natural or legal person who commissions the production of a work or who produces it with the paid collaboration of others, shall be entitled to the ownership of the proprietary rights The powers relating to the disclosure, integrity of the work and collection of this type of creations shall be vested in it.
The person who participates in the making of the work, for remuneration, shall have the right to be expressly mentioned as author, artist, performer or performer on the part or parts in the creation of which he has participated.
Article 83 bis.- In addition to the provisions of the preceding Article, a person who participates in the performance of a musical work for remuneration, shall be entitled to the payment of royalties generated by the communication or public transmission of the work, in terms of Articles 26 bis and 117 bis of this Law.
For a work to be considered commissioned, the terms of the contract must be clear and precise; in case of doubt, the interpretation most favorable to the author shall prevail. The author is also entitled to draw up his contract when a work is commissioned.
Article 84. In the case of a work performed as a consequence of an employment relationship established through an individual employment contract in writing, In the absence of an agreement to the contrary, it shall be presumed that the economic rights are divided equally between employer and employee. The employer may disclose the work without the employee's authorization, but not vice versa.
In the absence of a written individual employment contract, the economic rights shall correspond to the employee.
Sources:
Digital registration: 2016253
Instance: Collegiate Circuit Courts
Tenth Epoch
Subject(s): Administrative
Thesis: I.1o.A.186 A (10th.)
Source: Gaceta del Semanario Judicial de la Federación. Book 51, February 2018, Volume III, page 1513.
Type: Isolated
THE INDIVIDUAL TO WHOM THE WORK IS ENTRUSTED NEVER LOSES THE CHARACTER OF AUTHOR AND, THEREFORE, THE RIGHT TO BE PUBLICLY RECOGNIZED, DESPITE THE FACT THAT HIS ARTISTIC WORK HAS BEEN THE RESULT OF SOMEONE ELSE'S INITIATIVE OR CONCEPTION. From the systematic analysis of articles 11, 12 and 27 of the Federal Copyright Law, it is clear that although it is true that the author of a work, that is, the natural person who creates it, is not necessarily, at the same time, the owner of the rights that its creation generates, especially those of an economic nature, since these can be transferred, either by express or presumptive legal assignment, to a third party, who becomes the derivative owner, it is also true that such circumstance does not modify nor can extinguish his quality of creator of the specific intangible good, since it is inherent to his person and, therefore, he is always entitled to be publicly acknowledged. Therefore, the fact that in a commissioned work the commissioned artist does not generate the artistic creation from his own initiative or personal conception, but as a consequence of a paid commission offered to him by a third party (the commissioning party) who also referred to him the idea to be materialized, is not a reason to assimilate the latter as its author, since article 14, section I, of the aforementioned legislation expressly provides that isolated ideas are not subject to protection and, therefore, categorically prescribes in the second paragraph of article 83 that the creator of a work by paid commission shall always maintain the right of paternity in relation to it; This provision, in congruence with the elementary principles of copyright law, is completely logical, since the only person who can legitimately claim to be the creator of a work is the natural person who actually developed it, even when, it is reiterated, its creation has not been the product of his own initiative or personal conception.
FIRST COLLEGIATE COURT IN ADMINISTRATIVE MATTERS OF THE FIRST CIRCUIT.
Digital registration: 176478
Instance: Second Chamber
Ninth Epoch
Subject(s): Constitutional, Administrative
Thesis: 2a. CXXV/2005
Source: Judicial Weekly of the Federation and its Gazette. Volume XXII, December 2005, page 402.
Type: Isolated
ROYALTIES. ARTICLE 83 BIS OF THE FEDERAL COPYRIGHT LAW, BY PROVIDING FOR ITS PAYMENT IN FAVOR OF WHOEVER PARTICIPATES IN THE PRODUCTION OF A MUSICAL WORK FOR REMUNERATION, DOES NOT FAVOR A DOUBLE PAYMENT AND, THEREFORE, DOES NOT CONTRAVENE THE GUARANTEE OF LEGALITY. From the analysis of articles 13, section II, 83, 83 bis and 84 of the aforementioned Law, it is clear that in the case of commissioned works or those produced with the paid collaboration of several persons, the owner of the economic right is precisely the individual or legal entity that had the initiative to produce the work in any of these two modalities, provided that there is no agreement to the contrary. On the other hand, whoever participates in the musical work for remuneration is entitled to a royalty for his quality of author, artist, interpreter or performer on the part or parts in whose creation he has participated, this is due to the fact that the remunerated participation does not make the quality of author, artist, interpreter or performer disappear, since the Federal Copyright Law expressly recognizes such quality, regardless of the fact that for his participation in the production of the work he received a specific and determined remuneration. In this sense, the reasons stated in the opinion of the United Commissions of Education and Culture, Tourism and Legislative Studies of the Senate are precise in determining the purpose of the addition of Article 83 bis, namely, that those who participate in the creation of a musical work have the right to receive a royalty, even when their participation is remunerated, since the authors of musical works must benefit economically in the measure and proportion of the resources generated by their work; that is to say, they must benefit according to the acceptance and success that their works obtain in commerce, which is not opposed to the prior remuneration that they receive for their participation, because the work is the product of their intellectual creation recognized and protected by the Law; furthermore, it is congruent with the difference between economic rights and the right of simple remuneration. Therefore, the fact that the user of the work has to pay a consideration to the holder of the economic rights and a royalty to the person who has participated in the creation of the work for remuneration does not contravene the guarantee of legality contained in Article 16 of the Political Constitution of the United Mexican States, nor does it imply or imply a double payment for the same concept, since these are two different matters.
Digital registration: 2016237
Instance: Collegiate Circuit Courts
Tenth Epoch
Subject(s): Administrative
Thesis: I.1o.A.187 A (10th.)
Source: Gaceta del Semanario Judicial de la Federación. Book 51, February 2018, Volume III, page 1414.
Type: Isolated
COPYRIGHT. ARTICLES 80, FIRST PARAGRAPH AND 83 OF THE RELATED FEDERAL LAW ARE NOT SPECIAL EXCLUDING RULES, BUT CONVERGENT, IN THE CASE OF A WORK FOR HIRE DEVELOPED IN CO-AUTHORSHIP, WHEN THE PRINCIPAL ALSO PARTICIPATES IN ITS CREATION AND IT IS A PERFECT COLLABORATION. Derived from the fact that an artistic creation is not always the product of a single natural person, that is to say, of a single author, nor is it necessarily the result of his own initiative or personal conception, we find among the legal institutions that make up copyright law those relating to co-authorship and works by commission. The first is configured when several persons decide to generate a work that constitutes a unit, either by working together or separately, but with the purpose of making certain creative contributions for its realization. Thus, when the artistic good produced in collaboration constitutes an inseparable unity, that is, it is not possible to divide it without altering its nature, nor to identify the part developed by each of the participants, we are in front of what the doctrine identifies as a perfect collaborative work, In this case, Article 80, first paragraph, of the Federal Copyright Law establishes that all its creators, in equal parts, have all the prerogatives that the law grants them with respect to the generated work, unless otherwise agreed or the different degree of authorship of each one is demonstrated; This legal presumption is perfectly logical, since it is not possible to identify the level of participation of each author and, therefore, it is valid that the legal inference is in the sense that all of them contributed in equal proportion. On the other hand, a commissioned work is a work that is not the product of the author's initiative nor derives from an idea of his own, but is developed by him due to the specific and remunerated assignment requested by a third party (principal), who cannot be assimilated to an author by the mere fact of referring to him the idea to be materialized, which is why, in accordance with article 83 of the above-mentioned law, he can only become a derivative owner of the economic rights of the intellectual creation, It provides that, unless otherwise agreed, the individual or legal entity that commissions the production of a work will enjoy the ownership of the economic rights and will be entitled to the faculties related to the disclosure, integrity of the work and collection of this type of creations, specifying that the creator will always maintain the right of paternity. In this order of ideas, co-authorship and the development of a work by commission constitute two different legal concepts and, consequently, it is feasible that they converge in the reality that regulates copyright, that is, when a person develops a work from his own idea together with another, whose participation derives from the remunerated commission offered by the former, a situation that is expressly recognized by the last mentioned provision; However, said article only defines, as explained, in whose favor the ownership of the economic rights of the work produced in those terms will be presumed, and some moral rights, in the absence of an express clause between the parties, but does not establish how to resolve the degree of participation of each of the co-authors with respect to a work developed in perfect collaboration, in the absence of a specific agreement defining this issue, a topic that is resolved by the first paragraph of article 80 mentioned above. Therefore, it is concluded that the aforementioned precepts are special rules of a convergent nature, in the case of a work for hire developed in joint authorship when the principal also participates in its creation and it is a perfect collaboration, by establishing two different legal presumptions applicable to the case, namely, in the absence of proof or agreement to the contrary, that: (a) both the commissioning author and the commissionees for remuneration are creators in equal proportion with respect to the work generated as an indivisible unit; and, b) the commissioning author is the sole owner of the economic rights of the work produced, as well as of the various moral rights of disclosure and integrity, derived from being, on the one hand, the original owner of a portion of such prerogatives, due to his character of co-author of the work and, on the other hand, a derivative owner with respect to the commissioned creators, who transfer to him their aliquot part as a consequence of the remuneration paid to them for their collaboration, The latter only retain, regardless of the terms under which the creation of the work has been agreed, the ownership of the paternity right with respect to the work, as well as the economic right to receive royalties for its public communication, if it is a musical work, in accordance with article 83 bis of the Federal Copyright Law.
FIRST COLLEGIATE COURT IN ADMINISTRATIVE MATTERS OF THE FIRST CIRCUIT.
