Wednesday, 4 November 2009

Premio Planeta 2002 prize winner found liable

Alfredo Bryce Echenique, known as the winner of the ‘Premio Planeta 2002’ for his novel “ the garden of my beloved” has been sentenced by the INDECOPI.

The decision comes after the writer allegedly copied 16 articles from different media (nationally and internationally). In January 2009,the first administrative instance at the Copyright Commission – INDECOPI held that Mr Bryce has infringed moral rights which are protected under ‘Ley sobre el derecho de autor’;specifically, the right of integrity (Art 25) and the paternity right (Art 24). The writer was fined 71,000 new soles ($56,000 approx).

Mr Bryce appealed to the decision on the grounds that there were improprieties in the proceeding such as: the defendant (Mr Bryce) was not properly notified in his legal domicile which was in Barcelona, Spain; that the alleged copied articles were published in Spain and therefore, the Peruvian courts lacked of jurisdiction; and lastly, that the first administrative instance did not take into consideration the principles of proportionality and reasonableness. Moreover, there was, according to him, a pending request for defence to the institution as to declare invalid the resolution.

The National Institute for the Defence of Competition and Intellectual Property Protection (INDECOPI in Spanish) upheld, through the Intellectual Property Chamber, the first instance decision. It confirmed that there were not improprieties in the process and that the Peruvian law grants right to authors irrespective of nationality or place of publication (Art 203). What is more, it also extended the decision to mention that the fine was proportional to the infringements since they were repeated (Art 186 (f)) and disseminated through mass media (Art 186 (e)).

I believe indeed that the penalty imposed is proportional to the harm caused. However, how is this fine going to be distributed? Usually compensation for the alleged infringement is made to the editorials – the copyright owner. However, as we are in presence of moral rights, should not compensation be to the authors? The law does not explain this point, Art 186 and Art 194 only set up how compensation must be established.

After hearing the sentence the writer said that he will resort to the judiciary, believing that the judicial system is more reliable that the administrative one. There is under Peruvian law the possibility of a civil and penal proceedings . However, I do not expect a u-turn if the case goes into trial. The key issues are the ‘amount taken’ and the ‘use made’ of the work. As the case stands, it appears to be against Mr Bryce because there have been substantial copy and the use was for commercial purposes (Art 186 (b)). He could also be in front of a penal action and thus, could put himself in jail for no less than 2 years (Art 217).

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