Welcome to our blog for Intellectual Property Law and Practice in Latin America!
¡Bienvenidos a nuestro blog de Derecho y Práctica de la Propiedad Intelectual en Latinoamérica!
Bem-vindo ao nosso blog sobre Direito e Prática de Propriedade Intelectual na América Latina!

Tuesday 21 March 2017

Patricia Covarrubia

Protecting collective intellectual property: the case of the Mayan women

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No Latin American community is oblivious to the concept of dispossession. For centuries the indigenous communities have had to fight to preserve their traditions and protect them from a system determined to annul them. The struggle to maintain their identity has been carried out in various battlefields: in cornfields against sugarcane plantations, oral tradition against the imposition of Spanish, resistance to tyrants such as Ríos Montt, who was the first ex-president to be convicted of genocide by a court in his own country.

Now the Mayan weavers present a new battle for the right of communities to be recognized as ‘collective’ authors of their artistic creations. The National Mayan Weavers Movement has proposed a legal strategy (through Ley N. 5247) to protect its legacy and ensure that the intellectual property of indigenous peoples is recognized. While the idea is first to protect the güipiles (distinctive clothing of the Mayas), the reform is expected to benefit more art crafts.

The güipiles:
The production of this indigenous craft carries long hours of manual labour as well as considerable level of skill. Linking the strands of vibrant colours is an intimate and spiritual process. In the fabric is embodied the ‘cosmovision’ of an ancestral community. It is an account of unhappiness, faith and cultural grandeur that represents the core of Mayan idiosyncrasy closely linked to its land, which is sacred.

The bill
It has been formally accepted, it must now go through Congress . It seeks to reform the articles of 4 legislations and deals with the following topics:

To recognise indigenous peoples as authors. At the moment only natural or legal persons are granted this right (art 5 Ley de derechos de autor y derechos conexos); if the work is in the public domain the owner of the said work cannot oppose the use of it by third parties who produce different versions (art 12 Ley de derechos de autor y derechos conexos); there must be a civil association legally constituted without political or religious activities to be able to enjoy protection for their IP (art 113 Ley de derechos de autor y derechos conexos); ban on the export of cultural goods (art 11 Ley de Protección y Desarrollo Artesano); to produce a list of acts that constitute a violation of copyright (art 274 Código Penal de Guatemala); among others.

This initiative would put an end to the need to make artistic ‘individual’ creations and thus, allowing communities’ creations too (Guatemala as member of the United Nations voted in favour of the Declaration on the Rights of Indigenous Peoples (UNDRIP)– the Declaration addresses both individual and collective rights). The Bill would also provide protection against third-party industrialization and safeguarding the sacred knowledge (fulfilling UNESCO’s aims i.e. to safeguard intangible cultural heritage).

In the long history of racism by the Guatemalan state, it is promising to find this group of women, who have rejected the use of national or foreign intermediaries. Mayan weavers do not need anyone to use their own voice and are defending what is theirs, both because of the millennial heritage and the product of their creativity and work.

This initiative echoes other sui generis efforts such as that of Mexican gum producers who jealously protect the Mayan jungle while exporting tons of organic and biodegradable chewing gum to 26 European countries through the Chicza brand. It represents about 1,500 Mayan producers in south-eastern Mexico.

We may be on the threshold of a new stage in the management of IP in Latin America, one where the identity of our peoples is recognized rather than forced into a model in which they have no place. The struggle of the Mayan weavers is a celebration of our community culture.

Written by Claudia Fernandez Padilla (edited by Patricia Covarrubia),  LLM candidate in Intellectual Property Law, Brunel University, UK. 
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Tuesday 7 March 2017

Patricia Covarrubia

Mexico Federal Copyright: to change

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Image result for marrakech wipoMr José Luis Alvarez, trade mark agent from Mexican Consulting & Development, SC, inform us the following:
Mexico has been one of the twenty countries that have signed up to the Treaty of Marrakesh. Nowadays globalization has caused our legal environment to adhere to international treaties that protect human rights. In this context, the Treaty of Marrakesh is one of them, since the purpose of this instrument is to allow access to people who lack some visual acuity or who suffer from blindness, to published works focused on this segment of the population.
The signing of this treaty seeks to address the scarcity of material that is easily accessible to this population group. Mexico is among the 20 countries that signed the treaty, achieving the standards of countries such as India, El Salvador, South Korea, Australia, Israel, Chile, Ecuador, North Korea, among others. This is how Mexico has committed to reform the federal copyright law which must consider an exception or limitation regarding the right to distribution, reproduction and public availability to access audiovisual works or books.
This treaty allows the parties involved to import and export copies in an easier and more accessible way for this segment of the population. With regard to importation as soon as our legislation is adapted in relation to this treaty, a copy may be accessed without the authorization of the holder of the rights.
Thanks for the information.

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Monday 6 March 2017

Patricia Covarrubia

France and Peru present cooperation action

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A bilateral cooperation was signed by France and Peru back in 2015. The cooperation was in the field of intellectual property (IP) and economic development. Because of this, last week the 2017 Work Plan was signed.

Image result for france and peruThe plan includes: “information exchange, training of professionals in intellectual property, program to support companies in the use of the patent system, exchange of experiences in geographical indications, as well as strengthen the fight against piracy and the promotion of technological innovation.” There will also be a joint work with the Comité National Anti-contrefaçon which is the French Anti-Piracy Committee.

One exchange of information that caught my attention was addressed to geographical indication which will include the functioning of the ‘regulatory associations’ in the country. Thus, an official from INDECOPI will be trained at the Centre for International Studies of Intellectual Property (CEIPI) in France. The French has protected for centuries GIs e.g. XIV French legislation protecting ‘Roquefort’.

GIs in Latin America
Some Latin American countries have GI system which are controlled by the Government and/or owned by the state, e.g. Guatemala (art.81 Decree No.57/00), Mexico (art.167 Ley Propiedad Industrial), Panama (art.137 Ley No.35), and Peru (art 88 Decree No.1.075/08). This is a major point since farmers, artisans and Indigenous peoples mistrust government. In France the holders of an appellation of origin are the producers and groups of producers enjoying the appellation of origin in question. In Peru the state is the holder.

Peru on GIs
Peru has registered the handicraft Chulucanas (DO) for ceramics located in the town Chulucana (Resolución 011517). The association hold a national registration and also an international registration. Peru is part of the Lisbon Agreement and as such once chulucanas were protected in the country of origin the country requested its international registration at the International Bureau of WIPO, which keeps the International Register of Appellations of Origin – thus, chulucanas must be protected in all countries of the Lisbon system. There are 28 members and 6 are from Latin America.

EU on GIs
In the EU GIs are regulated separately from the TM system. Wines and aromatised wines - Regulations (EU) No 1308/2013 and 251/2014; Spirits - Regulation (EC) No 110/2008; and Agricultural products and foodstuffs - Regulation (EU) No 1151/2012. There is no protection for handicraft (as there is in Peru). However, EU is discussing the extension of GIs to protect non-agricultural products as well (see the 06/10/15 resolution adopted by MEPs). Around 25 per cent of the registered GIs in Latin America are for non-agricultural products. This is not a contravention. Actually the TRIPS Agreement and the Lisbon Agreement invite Member States to protect GIs. These agreements do not differentiate among GIs for agricultural and non-agricultural products. Yet in the Doha Round two matters were raised in regards to GIs: 1) Extending the higher level of protection beyond wines and spirits; and 2) to establish a multilateral register of GIs for wines and spirits which would be legally binding for all WTO members.

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