Mexico: A portrait of protection

Is everything on the Internet free to use? Can a designer or a producer freely use a work or the image of an individual that has been published on the Internet for personal or commercial purposes in Mexico? Can a student freely use an online work for a school project?

These questions are frequently asked around the world, given that the widespread use of digital media makes the exchange and download of information, videos, photographs, songs and other types of work so easy that, in some instances, it can be difficult to determine whether the use of materials found online is in fact permitted.

The Internet facilitates the copying, distribution and reproduction of works and can provide the impression to people with no knowledge of copyright protection that they can freely download, copy or reproduce works or images for personal or even commercial or marketing purposes.

This article examines some aspects of Mexican law with regard to works or portraits that have been published or posted on the Internet.

Copyright and how it is protected

Although Mexico has no specific regulation governing digital or online copyright, such as the Digital Millennium Copyright Act in the United States, according to the Federal Copyright Law, an artistic or intellectual work is protected for its sole fixation in a material medium of expression, regardless of whether this medium is digital or hard copy.

Copyright in Mexico bestows two different rights on the holder: moral rights and economic rights. Moral rights protect the author and the work’s integrity. Economic rights entitle the holder to communicate and commercially exploit the work and to impede others from doing so without written authorisation. Moral rights belong to the author, who in Mexico is the individual who created the work. They are perpetual and cannot be assigned. Economic rights initially belong to the author, who is entitled to assign them to other parties or who can recognise that these belong to another party by virtue of a work-for-hire or employer-employee relationship.

In this regard, an author or the economic copyright holder of a work in Mexico has the exclusive right to communicate, use, distribute, reproduce and commercially exploit a work. As a general rule, if an author or economic copyright holder has decided to publish a work on the Internet, it is the only party that can authorise other people to use, download and reproduce this work.

In view of this, works that can be commonly found on the Internet have the same level of protection as traditional works. For example, a digital book enjoys the same level of copyright protection as a paper book – if a user is not permitted to make a full copy of the paper book, the same prohibition applies to a digital book.

Exceptions apply to these exclusive rights, which are set out in Article 148 of the Copyright Law. These establish that literary and artistic works which have already been disclosed or published can be used in the following cases without the consent of the economic copyright holder and without remuneration, provided that the normal exploitation of the work is not affected, the source is credited and no alteration is made to the work:

• quotation of texts, provided that the amount quoted is not substantial and does not simulate reproduction of the work’s content;
• reproduction of articles, photographs, illustrations and comments relating to current events that have been published in the press or broadcast by radio or television, or any other medium of communication, provided that this has not been expressly prohibited by the rights holder;
• reproduction of parts of a work for scientific, literary or artistic criticism and research;
• reproduction of a literary or artistic work once, and in a single copy, for personal and private use, and without the intention of benefiting commercially – a legal entity may not avail itself of this subparagraph, except for educational or research institutions and entities not devoted to trading activities;
• reproduction of a single copy by archives or a library for reasons of security and preservation, where the work is out of print or no longer catalogued and is liable to disappear;
• reproduction for the purposes of evidence in a judicial or administrative proceeding;
• reproduction, communication and distribution in drawings, paintings, photographs and audiovisual material of works that are visible from public places; and
• publication of a literary or artistic work for people with disabilities, without the intention of benefiting commercially.

The Copyright Law thus regulates the fair use of works that have been published (even on the Internet or in any other medium) by their authors or economic rights holders. However, in some cases it remains difficult to know whether the use of a work is permitted, for example with regard to quotation, since no parameters have been established by the law or its regulations setting out the extent to which quotation is permitted.

Therefore, the answer to the question “Is everything on the Internet free to use?” is a clear “No”. In general terms, it is necessary to obtain authorisation from the author or the copyright owner in order to use a work. While in some cases it is possible to use or reproduce works found on the Internet based on the exceptions set out in the Copyright Law, these must be analysed on a case-by-case basis, in order to determine whether the use and/or reproduction of a work is permitted.

As a general rule, downloading content from the Internet is permitted under the Copyright Law when this is for private use with no intention of obtaining profit and the normal exploitation of the work is not affected. For example, if a student downloads a song or uses a drawing found on the Internet for a school project, this will not constitute infringement per se. However, what happens if the project is then entered into a contest outside the school and wins a cash prize? This could constitute copyright infringement if the student fails to obtain proper authorisation from the author or the owner of the work.

If a work published on the Internet is illegally used for commercial purposes (ie, without authorisation from the author or the copyright owner), this action constitutes copyright infringement, which can be prosecuted in Mexico by either an administrative or a criminal action.

Image rights

Another questionable situation is where a portrait of an individual is downloaded. In this scenario the following questions arise:

• What is the legal situation for photographs published on social media sites such as Facebook or Instagram – are they free to use for any purpose?
• What happens if someone publishes a photograph of me in my Facebook profile and thereafter I discover that it has been used by a company in its advertising materials?

In the first instance, it is important to read and understand the terms and conditions of the social network in question, since the use of such networks generally involves giving certain consents with regard to the use of photographs. In general terms, users grant the network an irrevocable, perpetual, non-exclusive, transferable, fully paid worldwide licence to use, copy or publish any content posted on it. However, while Facebook or Instagram may have a licence to use your photographs, this does not extend to anyone else – not even friends on such sites.

In Mexico, image rights give the subject of an image the ability to authorise or prohibit the fixation, reproduction or distribution of his or her image in any material form, particularly for advertising or commercial purposes. Article 87 of the Copyright Law governs image rights and establishes that a portrait of an individual can be used or published only with his or her written authorisation. There are exceptions to this general rule, such as when the portrait of the individual constitutes a minor element of a photograph or when the photograph was taken in a public place for journalistic or informative purposes.

The Copyright Law clearly establishes that use of the image of a person for commercial purposes without authorisation constitutes infringement, which is subject to monetary damages. In this regard, if someone downloads and uses a portrait published on the Internet for commercial purposes, the person appearing in the portrait has the right to initiate an action against the party that has illegally used his or her image or portrait.

Conclusion

The first relevant conclusion here is that the Internet has transformed the way that we communicate with one another and the manner in which we make public our works and photographs. It has made the exchange of information so quick and easy that the notion of what is protected by copyright has become diluted.

However, it is vital to remember that all artistic and literary works published on the Internet have the same protection as if they had been published in any other way.

Copyright protection in Mexico refers to the right of the author of a work or the copyright owner to use, reproduce, commercially exploit and communicate the work and to prevent others from doing so without express authorisation.

All portraits published on the Internet are protected by the Copyright Law. If image rights are violated by using a portrait for commercial purposes without authorisation, an action can be initiated for infringement of image rights.

Karla B Alatriste Martínez
Lawyer
[email protected]

Karla B Alatriste Martínez holds a law degree from Escuela Libre de Derecho law school and a postgraduate qualification in corporate law from the Panamerican University in Mexico City. A member of the Mexican Association for the Protection of Industrial Property, her practice specialisms are technology transfer, copyright and licensing.