Illegal Streams: shutting down in Ecuador

Illegal Streams: shutting down in Ecuador

Patricia Covarrubia   September 17, 2019   No comments:

The Ecuadorian Institute of Intellectual Property (IEPI) currently named SENADI (National Intellectual Rights Service) is the state entity that regulates and controls the application of IP. The Organic Code of the Social Economy of Knowledge, Creativity, and Innovation is the IP legislation applicable.

SENADI has different divisions, one of them is the Órgano Colegiado de Derechos Intelectuales, which is the office in ‘charge of attending all administrative resources and cancellation actions that are presented before it’.



The latest measure by SENADI is seen as a ‘milestone’, but why?

Background: in August 2019, DIRECTV Ecuador C. Ltda., and the National League of Professional Football, LALIGA, presented an administrative action against MEGAPLAY and LIKETV in Ecuador. SENADI carried out an inspection of a property in which supposedly there was equipment that allows access to TV signals without authorization.
How did it work? MEGAPLAY  and LIKETV were retransmitting unauthorized audio and video signals to their clients. The clients paid an amount to watch the programs as well as having a device called TV Box, that received the retransmitted signals.
The result: SENADI ordered the blocking of Internet Protocols (IP) that allow access to internet television MEGAPLAY and LIKETV in Ecuador.

This is not, however, the first time SENADI blocks illegal sites. Back in June 2019, SENADI blocked 5 sites belonging to ROJA DIRECTA which also specializes in streaming sports. Ecuador follows other countries in the region. In Argentina, the video streaming Cuevana.tv site (12 million monthly users) was blocked in 2011. In 2017, the Mexican national IPO suspended SPORTFLIX (the NETFLIX of sports ) due to copyright infringement. Just because is a new way to communicate and distribute TV programs, it does not mean that they are outside the IP legislation – watch out.

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Copyright infringement by a sticker album: Stick that!

Copyright infringement by a sticker album: Stick that!

Patricia Covarrubia   April 12, 2018   No comments:

The Peruvian Copyright Commission, which is a sub-division of the National Institute for the Defense of Competition and the Protection of Intellectual Property (INDECOPI) has (ex-officio) dictated a precautionary measure of cessation against Capri Internacional SA [Resolution No. 00205-2018 / CDA-INDECOPI of 03 April 2018]

The measure suspends the commercialization of all the stickers of imagines corresponding to the album "World Cup Russia 2018", in which the denomination "3 Reyes" is shown.[Capri Internacional (formerly Navarrete - now 3 Reyes)]. The resolution comes after verifying that copyright law protects the photographs included in the album - the company did not have a licence.

In the same resolution, there was also a measure of cessation of the app "Virtual Stickers" - which is expressly referred to in the album "World Cup Russia 2018", in which the denomination "3 Reyes" was present. In addition, through the app access to recordings of football matches could be watched, and thus, the cessation order extended to the companies 3.0 Consulting Group SAC and Capri International S.A. The Resolution order the companies to ‘suspend all communication to the public of the aforementioned recordings, because these are protected as a related right within the framework of the legislation on copyright and related rights [secondary works], and must have the corresponding authorizations of each of the holders of the rights over these.’

Source INDECOPI.

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Red card for Mexican composer: passion for football

Red card for Mexican composer: passion for football

Patricia Covarrubia   October 26, 2016   No comments:

From Mexico and Spain we read a debate about a potential case of copyright infringement.
The Mexican football club ‘Club America’ has released this month a new hymn celebrating its centennial. The song was launched during the half time of the game against Tijuana on Saturday October 15th.

The hymn created much controversy in social media since it is claimed that the hymn is similar to another football club, that is the ‘Sevilla’ from Spain (the hymn can be heard here).

laixb.com

The authorship of the alleged infringed song belongs to the Mexican group Matute, headed by Jorge D'Alessio. After the social media war, he claimed that "there is no copying or plagiarism" in the hymn while the football club separated from any responsibility. The band also noted that there was no ‘intention’. In this regards it is important to note that intention is not needed for an action of infringement since it is strict liability.

Finally, the Mexican football club released a communication stating that "although the musical work is an original work, it has caused some discomfort, therefore this song will never be used by the Club". Why this reaction? the work was commissioned and depending on the contract, they may be the owner of the song and even if the club wants to separate itself from this controversy and keep using it, they are liable (Art 231 of the Mexican Federal Law on Copyright) .

Jorge D'Alessio also published a statement: “Club America asked me to conduct, through the figure of commissioned work, the anthem of the 'centenary', not the official anthem, which I lovingly did as I am fond of the America. You should know that there is no mutilation, copy, distortion, or so-called plagiarism, nor in the letter or the music composed.” It continues “experts in the field are already making the necessary expertise in order to compare the two compositions.”

Good to know:

• The Mexican Federal Law on Copyright for the purpose of ensuring legal security of authors and owners of copyright, advice authors to register the work in the Public Copyright Register (art 162). However the same provision of law clarifies that even if literary and artistic works and neighbouring rights are not registered, the law still protect them. This goes in line with the Berne Convention which grants this right without the need of any formality.
• Practice of infringement can be for direct or indirect profit-making purposes (art 231).
• The use of language in D’Alessio’s statement i.e. ‘distorted, or mutilated’ are type of infringements covered in art 231(iv).
• The author of a work is the perpetual owner of the moral rights in works created by him (art 18).

Sources and more info here, here and here.

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A Presidential candidate that finished in a copyright infringement battle - welcome to Peru

A Presidential candidate that finished in a copyright infringement battle - welcome to Peru

Patricia Covarrubia   September 16, 2016   No comments:

Back in February 2016 the blog reported about a suspected plagiarism case (s) blaming Mr César Acuña Peralta who was running at the time for the Peruvian Presidency.

Mr Acuña was accused of copying his doctoral thesis (submitted at the Universidad Complutense, Madrid, in 2009) as well as his master’s thesis (submitted at the Universidad de los Andes, Colombia) and a whole book (authored in fact by Peruvian Professor Otoniel Oyarce Alvarado). As these accusations were so strong the Peruvian National Institute for the Defence of Competition and Protection of Intellectual Property (Indecopi) decided to investigate the accusations (Organization and Functions Act and Decree Legislative 822 gives INDECOPI the powers to investigate acts affecting copyright and related rights within the country).

Last week INDECOPI finally came to a conclusion sanctioning Mr. César Acuña Peralta and the Universidad César Vallejo (UCV) for copyright infringement in relation to the authorship of the book “Política Educativa – concepto, reflexiones y propuestas”. INDECOPI also sanctioned Mr César Acuña Peralta for his the doctoral thesis “Competencia Docente y Rendimiento Académico del Estudiante de la Universidad Privada en el Perú”.

In the procedure, INDECOPI’s Copyright Commission concluded that:
• Mr Acuña Peralta infringed the moral right of paternity: claiming to be co-author of the book although the only author is Otoniel Alvarado Oyarce.
• The UCV infringed the moral right of paternity since it published the book, attributing sole authorship to Mr César Acuña; and so giving authorship to the book to a third party other than its creator.
• The UCV made another publication which although correctly attributed authorship to Otoniel Oyarce Alvarado, on the credits page of that book the copyright sign ( © ) was added next to Mr Acuña Peralta name, who is also mentioned as an author in the preface. By this the publisher granted authorship to the book to a third party other than its creator.
• In these two published books the Commission noted that the moral right of integrity of the author was also infringed since at least one paragraph of that work was mutilated.
• The patrimonial right of distribution was also infringed since both publications are kept and loaned at the Resource Center for Learning and Research of the UCV. The INDECOPI has ordered to withdraw from circulation such copies.
• In the proceedings against the UCV INDECOPI also found that there was infringement of the moral right of paternity of the author of the prologue of such books. The prologue was written by the priest Otoniel Ricardo Morales Basadre for Oyarce Alvarado. Both publications were altered and so, changing the name for the person for whom he wrote the foreword.
• As the prologue of the infringing copies were distributed for loan in the Resource Center for Learning and Research of the UCV, the Commission determined that the patrimonial right of distribution was infringed.
In regards to the doctoral thesis the Copyright Commission sanctioned with fines to Mr Acuña Peralta due to reproducing fragments of works of others without acknowledging the authorship of them; therefore the Commission concluded that Mr Acuña Peralta infringed the moral right of paternity of those authors.

INDECOPI notes that this “decision may be appealed to the Special Branch Intellectual Property of INDECOPI, which is the second and final administrative authority” of the INDECOPI.

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Check your rubber duck: is it original?

Check your rubber duck: is it original?

Patricia Covarrubia   April 12, 2016   No comments:

It is usual to open Latin American newspapers and read about protests. But what caught my eyes this time was to see a case of plagiarism in the middle of an actual ‘protest’.

Brazil is in the middle of a mayhem for many reasons (zika, will Brazil be ready for the Olympics, and politicians involved in cases of corruption, to name some). This time the protest was related to the accusation of Brazil's President Dilma Rousseff. The protesters are using as a mascot a rubber duck. But this is not any rubber duck. This is said to be a ‘copy’ of the famous rubber duck made by Dutch artist Florentijn Hofman. Mr Hofman’s rubber duck has traveled the world since 2007. He has been spotted in countries such as Japan, Taiwan, New Zealand and even visited Brazil.

What is the copy, if any?
According to the news published by BBC, the case is about copyright infringement and an exactly copy of Mr Hofman’s design. Is it?

Here comes the fishy bit: the ‘original’ duck appeared as part of an exhibition in Brazil, and this version of Mr Hofman's duck was produced in a Sao Paulo factory. This same factory produced the new claimed copied duck. However, the owner of the factory, Mr Sousa, affirmed that they have produced both ducks: Mr Hofman’s version as required at the time for the exhibition, and the new duck, but assured that the design was not copied. He noted that he will “not put [his] reputation at risk" and he has “experience in this kind of jobs and this is a very simple design. Why wouldn't we spend four hours redesigning it?"

IPRs in Brazil:
Industrial Design is protected under Brazilian Law. As in many jurisdictions, one of the requirement is novelty and thus, will take into account all previous designs (state of the art) that have been made public in any place of the world and by any means before the filing date (priority date). As acknowledged by Mr Santos, the duck's design is common and thus, it would not have been protected under design.

Copyright also is available in Brazil which is a member of the Berne Convention and thus, not requirement of any formal registration obligation. Works are protected automatically from the moment of its creation. However, it is advisable to register the work as in many other Latin American jurisdictions do advise.

In this particular case the duck does not appear to be registered but it does not mean that it cannot be copyright protected - the technical drawings may be protected. While there is a main difference between the two ducks (the original has normal eyes and the claimed copied duck has crossed eyes) it does not matter for there to be an infringement since the test is about quality not quantity. So, ignoring the eyes, is the said copied work reproducing the whole or a substantial part of the protected work?

A case of spot the difference?

Section 29 of Brazilian Law No. 9610/98 sets a list of actions which constitute copyright infringement and relevant to this duck we could mention: complete or partial reproduction of the works or, plagiarism. The causal link is indeed of no problem since Mr Sosa had direct access to the technical drawings - he prepared Mr Hofman’s version. On the other side of the coin, defences are also available to this ‘copy’ duck such as the drawings has no originality and thus, not protected and/or the copy duck is sufficiently different from the copyrighted work.

Talking about duck...well said Mr.

The question then is based on: does the duck’s technical drawings constitute ‘artistic work’ worth of protection? Copyright does not require for the work to be unique or inventive, the Brazil requirement is that actually the work needs to be fixed and that it has to be a creation of the mind. Can we said that this drawing contains creativeness?

In the meantime, ducks are still used in protests against the government.

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Academic Misconduct, plagiarism, copyright infringement or just an electoral fight

Academic Misconduct, plagiarism, copyright infringement or just an electoral fight

Patricia Covarrubia   February 15, 2016   No comments:

This month Peru’s newspapers have been busy reporting about an alleged plagiarism done by Mr César Acuña Peralta who is running for the Peruvian Presidency (here and here)

Mr Acuña has been accused of copying his doctoral thesis submitted at the Universidad Complutense, Madrid in 2009. Added to this accusation, now it emerges that he also copied his master’s thesis submitted at the Universidad de los Andes, Colombia. In the latter, news referred to the fact that some paragraph were well attributed to the author and using quotations marks but others were not. The alleged paragraphs were taken from the book authored by Cruz Cardona.


Accusations are so strong that the Peruvian National Institute for the Defence of Competition and Protection of Intellectual Property (Indecopi) has decided to investigate the accusation (in line with its Organization and Functions Act and Decree Legislative 822 that gives to it powers to investigate acts affecting copyright and related rights within the country). Moreover, the Universidad Complutense has announced that “it will initiate an investigation to determine whether Acuña committed academic fraud.”

The Spaniard newspaper El Pais noted that Universidad Pontificia Catolica del Peru passed the thesis through Turnitin, a software which is widely used in academia that matches the document against a database, and so detecting originality or similarity to other sources. The said academic “found in the first 165 pages an average of 80 % similarity to other Internet sources not necessarily cited in the investigation.” Declarations in this newspaper refers to pages after pages of textual copying without been either attributed or using quotation marks. In many educational institutions, plagiarism is treated as strict liability (as copyright primary infringement) while others require intention. In any case, plagiarism is a disciplinary offence.

A more recent accusation was brought by the newspaper El Comercio noting that it has transpired that in 2002 Mr Acuña authored and published a book which is an identical copy of the book authored by Peruvian Professor Otoniel Oyarce Alvarado.

Wow! Wow! Wow! These are really strong accusations. A master, a PhD and a book?! I am indeed amazed how these could have happen…I presume the University in Madrid did not have or use any software to check the originality of the work, -- possibly. However, we are talking pages after pages. How the supervisors and the examiners did not notice this matter? As an academic sometimes we read students work and we stop to think, uh? I have read something like this somewhere. But we are humans, and mistakes could have happen…but in a PhD there is so many people involved, and no one noticed it? The other issue that comes into my attention is the book that he allegedly copied. If it is claimed that is a copy of another one...how did anyone not notice this before? Both books are published in Peru and written by academics in Peru – surely a student or a person in the same fora could have noticed something.

Will Mr Acuña resign from his Presidency postulation? Or will he wait for the University in Madrid and the Indecopi to give a verdict?

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