The new-modeled Mexican law on copyright is a blatant cut-copy and pasted version of the Copyright Law in the United States, as the same is a result of the culmination of the United-States-Mexico-Canada Agreement (USMCA). Take, for example, the implementation of the Digital Millennium Copyright Act (DMCA) – like legislative provision in Mexico. It has been adhered to even after its many drawbacks, like its ability to serve as a barrier to free expression, education, competition, etc. The same has introduced a burdensome regime in Mexico, which probably works in favor of the first-world countries like the US and Canada itself, but not so for Mexico.
Provisional Changes in the Mexican Copyright Law
The major legal changes introduced through the United States-Mexico-Canada Agreement (USMCA), 2020 in the Mexican Copyright Act are as mentioned hereunder:
- The removal of content infringing copyright works through a simple take-down notice.
- Partial non-use lapsing and nullity actions can result in trademarks and patents being partially challenged.
- It will be no longer required to record a license agreement before the Mexican Institute of Industrial Property (MIIP) as was required before.
- During the Trademark Application proceeding, an applicant will receive only a single office action wherein absolute and relative grounds will be covered jointly. There will be no multiplicity in the same account.
- The ten-year term for the validity of trademarks, trade names, and slogans will be counted from the date of granting the said right.
- The term of protection for utility models will be extended to a maximum of 15 years.
- The Act allows second-medical-use patents. Also, the Bolar Exemption has been included, which will authorize the importation of Active Pharmaceutical Ingredients (API) to conduct tests during the remaining last three years of protection of a patent.
- The provision for a specific settlement proceeding of disputes derived from infringement actions is included.
- Incidental damages may be claimed once the decision of infringement becomes non-contestable before MIIP or Federal Courts.
- The Act of cam-recording is now included as a criminal offense.
Implications of the Newfound Law
Let us consider the implications of Mexico’s newly introduced copyright law:
- Freedom of Expression: The freedom of expression is widely incorporated in Mexican law through its constitution as well as through adherence to international human rights laws. However, copyright law does not operate on the same line. It has happened through the use of ‘automated filters.’ These filters are a result of algorithms that intercept any content, which is sought to be posted online by comparing it with a database of such sounds, words, pictures, or animations, which are forbidden for public viewership. This can lead to unnecessary hurdles and restrains since filters often mistake users’ creative works for copyrighted works controlled by large corporations and block them at the source.
For example, many a time, users are blocked for using music in the public domain only because someone else posted it before them. Filters cannot differentiate between content being incidental or fundamental in a given case. For instance, if there are three peacocks and five roses as an element of two different pictures, the same may be picked by the filter as being infringing in nature, and therefore, a real comparative analysis would not be possible. Filters have often been used in a strategic sense as well. For example, such filters can help wipe-out an ideological opponent’s demonstrations and rallies from surfacing online by playing copyrighted tunes in the backdrop. In such an event, the video utilizing the tune will be wiped out entirely to curtail the spread of information to the masses.
Another issue surrounding fair use is that, like other jurisdictions, Mexico also incorporates a fair-use provision. It is usually understood in terms of subjective interpretation as per the human to human interaction. A computer program cannot differentiate whether a piece of content falls under the doctrine of fair use – like if it can be considered as a parody or a commentary or a news report. It simply matches the content available in a database and identifies the similarity. Therefore, freedom of speech may be curtailed when it comes to someone making honest and fair use of content belonging to another.
Furthermore, since all judgments shall be scrutinized through an appellate or review process, imagine the number of cases that would need to go through a review to qualify human assessment, since a computer program or an algorithm may work at the speed of the data it needs to process, but their mistakes would have to be corrected by a human itself, which means at least a million cases would require scrutiny. This kind of filtering costs heavily on implementers of Mexican law contrary to the provision in the law stating that “it shall not impose substantial burdens.” YouTube has spent more than $100,000,000 for its ‘content ID’ filter, which still does not match up with the standards of the Mexican copyright law.
- Security Researchers: Like in the United States, there is a Digital Management Copyright Act (DMCA) – similarly, Mexico also imposes Technical Protection Measures (TPM) through its Article 114 bis. Digital Rights Management (DRM) includes basic encryption and other security measures that prevent access to one’s copyrighted software. Using these measures allows the copyright proprietors to control their competitors as well as their users by disabling them from removing TPM measures to use any third-party application or tools from others to use or unlock the proprietor’s copyrighted work. At the same time, this could be detrimental in identifying defects, leaks, and bugs in their products. This also means that proprietors get to choose who identify their defect – if they wish to do so. TPMs do not allow independent security research. However, Mexican law permits researchers only if their sole purpose is “testing, investigating, or correcting the security of the computer system or network.” However, it is unlikely for researchers to work with only one sole purpose since they would want to make use of such research to deliver well to the users and protect them from any harm. Since the provision is vague and states that “security researchers shall operate in good faith creating unquantifiable risk,” – it will make Mexican users and consumers prone to security threats.
- Exemptions to Copyright Infringement: The law states that where copyright is used for the sole purpose of security research or is used for non-commercial use or used in good faith, it would amount to fair use of the copyrighted work. However, the way the same is stated within the Act introduces vagueness and unfulfilled promises to the Mexican lot. It means that a work may be used for the sole purpose of scrutiny into the security measure and for research purposes, but it cannot be utilized to advance the state of security research in general or to protect the very privacy of the users. Therefore, it is a hollow provision. Likewise, the use of copyright for non-commercial use is permitted. It means that if you can modify the work for personal use or ask someone who knows how to do it to do the same for you instead of compensation, you may not be allowed to avail of the said service. Therefore, you cannot pay someone to modify the work to gain access. For instance, consider a person with impaired vision wanting to convert a book into a format that is user-friendly for someone with the said disability, then such an individual cannot ask a professional to do it in return for money. Also, if someone uses another person’s copyright without prior permission, the element of good faith has to be present, which is decided through subjective analysis by the court. However, if the judge decides, on the contrary, one could be heavily penalized by the imposition of fines and criminal sanctions. The same defects, as mentioned herein, were visible in the US copyright regime, and inherently so in the Mexican regime as well due to outright copying.
- Disable-friendly: Consider the example stated above of a person with impaired vision wanting to read a book. The Mexican law states that people suffering from disabilities are exempted from infringing copyright work by breaking TPM measures. However, at the same time, it suggests that commercial activities are not covered under the exemption. Therefore, this leads to the conclusion that if a person with a disability wants to be exempted while also not be caught at the time of making commercial-use through another by asking that another to deliver the needed adaptable technology in place of money, the individual has to
- Become an expert in cyber-security; or
- Be a researcher to discover a defect in the software.
This is so since no one can offer them technical assistance, and therefore, this provision is nothing but a simple over-statement. This provision needs further clarification to remove ambiguity and serve the actual intent with which it was enshrined in the legislation.