Copyright protection for foreign works II

December 20, 2010

By Luis C. Schmidt, Partner

Managing Intellectual Property, July/August 1999
In a previous briefing we analyzed copyright terms under the copyright laws of 1947, 1956, 1963 and 1997. Particular emphasis was made to the registration of rights, a requirement abandoned in the Mexican Iaw of 1947. It was also mentioned that a restoration provision required foreign authors not domiciled in Mexico to obtain registration of the work in the public domain within a one-year period. If that new formality was not met, restoration would not have produced effects and consequently the corresponding work would have remained in the public domain. In 1963, a similar restoration rule was adopted. Now the question has arisen of what wouId happen if a country adhered to the Union after 1963 without its national authors having obtained registrations as stated in the laws of 1947 or 1963.

Article 18 of the Berne Convention grants a solution. WIPO has interpreted it as an obligation on countries to protect works retroactively when the author failed to register but otherwise the work would still be under the term of protection of the protecting country or the term in law of the country of origin of the author, whatever term is shorter as stated by the comparison of term rule. Accordingly, foreign works should enjoy full protection in Mexico in conformity with article 18 of the Berne Convention.