Mexico’s New Copyright Law Provides Much-Needed IP Protections, But Faces A Possible Legal Challenge Over Free Expression

By: Mary Bradley

Mexican intellectual property laws received a major overhaul in July 2020 after the government enacted amendments to federal copyright and criminal laws following the approval of the United States-Mexico-Canada Agreement (hereinafter “USMCA”), but these amendments have received pushback from some who see them as an infringement on constitutionally protected rights.[1] The USMCA replaced the North American Free Trade Agreement (NAFTA) of the 1990s.[2] The agreement came into force for the three countries on July 1, 2020.[3] The USMCA includes many new provisions regarding copyright laws, among other trade-related agreements, including changing copyright terms to the life of the author plus seventy years; imposing criminal penalties; establishing minimum fifteen-year protections for industrial designs; mandating patent term extensions in some situations; a decade of data protection for agricultural chemicals; and strong civil and criminal trade secret protections.[4]

In response to the USMCA, Mexico’s Federal Copyright Law and Federal Criminal Code were reformed, and the Federal Law for Industrial Property Protection was enacted.[5] The laws were officially enacted after their publication in the Diario Oficial de la Federación, or Official Gazette, which contains all new federal legislation, decrees, resolution, and other announcements from the Mexican government and its agencies.[6] The amendments to the copyright law boast several reforms designed to not only bring Mexican law in line with the USMCA, but “create a robust regime for technological protection measures” and set out “in detail the rights of copyright holders (particularly in connection with software), performing artists[,] and phonogram producers, to control the use of their creations in the digital environment.”[7]

The new law remedies some problems the country faced with copyright infringement in previous years, such as camcording.[8] Camcording is the act of recording a movie while in a theater with a camera or other device, making a copy of the recording, and distributing the copy for downloading or streaming.[9] Previously, Mexican laws and the country’s enforcement capabilities of such laws were inadequate to address this problem despite its large film industry and need for an enforcement system.[10] Accordingly, the county’s camcording issue was indicative of Mexico’s need for copyright reform that followed the USMCA and implementation of appropriate punitive measures for copyright infringement.[11] For camcording in particular, the Federal Copyright Law and Federal Criminal Code now specifies that camcording is a criminal offense.[12]

The Federal Criminal Code was also amended to impose sanctions “on those who, without proper rights, receive or distribute an originally encrypted and encoded satellite signal carrying programs” and “those who manufacture, import, sell or lease a device or system to decrypt an encrypted satellite signal carrying programs, without authorization from the legitimate distributor of said signal.”[13]

While confronting and solving copyright infringement with camcording, for example, requires collaboration between copyright holders and government authorities under the appropriate law, some proponents of free expression (and, by extension, copyright protection for these creatives) are pushing back against the government’s recently approved legislation, arguing that the new copyright law places their constitutionally guaranteed right to free expression at risk.[14] The new law contains language similar to “notice and takedown” or “safe harbor” provisions seen in the United States’ Digital Millennium Copyright Act, which block copyright content from being posted online without the user having the rights to post such material and absolve online service providers from liability for this content.[15] Copyright infringement filters that follow such notice and takedown provisions are designed to prevent copyright violations but can be overly broad and step on the toes of content that is not infringing on a copyright at all.[16] Undoubtedly, fighting against copyright infringement and protecting people’s content in situations such as camcording is a cause worth fighting for. But, with overly broad infringement filters, creatives who upload their own content are subject to wrongful claims of copyright infringement and the result is a chilling effect on expression.[17] While “[a]lgorithms work at the speed of data . . . [and] their mistakes are corrected in human time (if at all),” those in Mexico who are subject to this law can nonetheless seek refuge from these harsh filters with a handful of exceptions outlined in the copyright law.[18]

On August 3, 2020, Mexico’s National Human Rights Commission asked the country’s Supreme Court to review the copyright law for possible violations to the right of free expression, property rights, cultural rights, among others.[19] Mexican organizations such as Electronic Frontier Foundation, R3D, and Derechos Digitales, along with Mexican citizens, asked the commission to bring the copyright law before the county’s Supreme Court.[20] According to R3D, an organization dedicated to digital human rights with a focus on free expression, international experts say the country’s new copyright law are more inflexible than its U.S. and Canadian counterparts despite the three countries being bound together by a common mission under the USMCA.[21] Through a #NiCensuraNiCandados campaign, more than 30 groups collected 70,000 emails addressed to the commission asking it to challenge the copyright law.[22] The commission’s petition to the Supreme Court has not generated a result as of the time of writing.

While Mexico’s new copyright law and amendments to the criminal code provide for a much-needed update to the country’s intellectual property protections, the amendments have forced the law into what will likely be a significant legal battle between free expression advocates, copyright holders, and the Mexican government. Navigating rights in a digital world remains a problem for many countries around the world, and Mexico’s recent law places the country among its peers that are also attempting to find answers to these difficult intellectual property questions.

Picture Credit: Performers and other creatives in Mexico received greater protections for their intellectual property, but does the law actually place free expression at risk? (Photo by Cesira Alvarado on Unsplash).

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[1] Changes in Intellectual Property Regulations in Mexico Under the New USMCA, EY (July 15, 2020), https://www.ey.com/es_mx/tax/boletines-fiscales-/changes-in-intellectual-property-regulations-in-mexico-under-the [hereinafter EY]; United States-Mexico-Canada Agreement, Int’l Trade Admin., https://www.trade.gov/usmca (last visited Aug. 23, 2020) [hereinafter USMCA]; Cory Doctorow, How Mexico’s New Copyright Law Crushes Free Expression, Electronic Frontier Found. (July 27, 2020), https://www.eff.org/deeplinks/2020/07/how-mexicos-new-copyright-law-crushes-free-expression [hereinafter Doctorow].

[2] Scott Neuman & Vanessa Romo, Senate OKs North American Trade Deal to Replace NAFTA, Giving Trump a Much-Needed Win, NPR (Jan. 16, 2020, 12:17 PM), https://www.npr.org/2020/01/16/796901909/senate-oks-north-american-trade-deal-to-replace-nafta-giving-trump-a-much-needed.

[3] EY, supra note 1.

[4] USCMA vs NAFTA, Int’l Trade Admin., https://www.trade.gov/usmca-vsnafta (last visited Aug. 23, 2020).

[5] EY, supra note 1 (explaining that the Federal Law for Industrial Property Protection supersedes Mexico’s Industrial Property Law, which was repealed).

[6] Guide to Finding Mexican Legislation, U. San Diego, https://www.sandiego.edu/law/library/research-trainings/foreign-and-international-law/finding-mexican-legislation.php (last visited Aug. 23, 2020).

[7] Copyright and Entertainment Law: Amendments to Mexico Federal Copyright Law, Besham (July 7, 2020), https://www.basham.com.mx/en/copyright-and-entertainment-law-amendments-to-mexico-federal-copyright-law/.

[8] Luis C. Schmidt, Ana Maria Magaña, & Fernanda Díaz, Problems with Mexican Copyright Law: Camcording, in The Copyright Lawyer 1 (2018).

[9] Id. at 1–2.

[10] Id. at 2.

[11] Id. at 3.

[12] Mexico: New Federal Law for Protection of Industrial Property & Amended Federal Copyright Law & Criminal Code, Hogan Lovells (July 1, 2020), https://www.engage.hoganlovells.com/knowledgeservices/news/mexico-new-federal-law-for-protection-of-industrial-property-amendments-to-federal-copyright-law-criminal-code.

[13] Changes in Intellectual Property Regulations in Mexico Under the New USMCA, EY (July 15, 2020), https://www.ey.com/es_mx/tax/boletines-fiscales-/changes-in-intellectual-property-regulations-in-mexico-under-the.

[14] Doctorow, supra note 1; Protecting Yourself Against Copyright Claims Based on User Content, Digital Media L. Project, https://www.dmlp.org/legal-guide/protecting-yourself-against-copyright-claims-based-user-content (last visited Aug. 23, 2020).

[15] Doctorow, supra note 1.

[16] William New, Concern Grows Over Spread of EU Copyright Filtering Rules, infojustice (June 18, 2019), http://infojustice.org/archives/41212.

[17] See, e.g., Ulrich Kaiser, Can Beethoven Send Takedown Requests? A First-Hand Account of One German Professor’s Experience with Overly Broad Upload Filters, Wikimedia Found. (Aug. 27, 2018), https://wikimediafoundation.org/news/2018/08/27/can-beethoven-send-takedown-requests-a-first-hand-account-of-one-german-professors-experience-with-overly-broad-upload-filters/.

[18] Doctorow, supra note 1.

[19] CNDH Presentó 46 Acciones de Inconstitucionalidad Ante La Suprema Corte de Justicia de la Nación, Comisión Nacional de los Derechos Humanos (Aug. 7, 2020), https://www.cndh.org.mx/sites/default/files/documentos/2020-08/COM_2020_245.pdf.

[20] Cory Doctorow, On the Road to Victory for Human Rights in Mexico!, Electronic Frontier Found. (Aug. 11, 2020), https://www.eff.org/deeplinks/2020/08/road-victory-human-rights-mexico.  

[21] CNHS Considera Inconstitutionales Reformas a la Ley Federal de Derecho de Autor y al Código Penal Federal, R3D (Aug. 10, 2020), https://r3d.mx/2020/08/10/cndh-considera-inconstitucionales-reformas-a-la-ley-federal-de-derecho-de-autor-y-al-codigo-penal-federal/ [hereinafter R3D]; Quiénes Somos, R3D, https://r3d.mx/quienes-somos/ (last visited Aug. 23, 2020).

[22] R3D, supra note 21.

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