Intellectual Property Rights of musical works or phonogram author rights have legal protection in Chile, in order make that protection effective, it becomes necessary its registry in the Department of Intellectual Rights. (Departamento de Derechos Intelectuales de la Dirección de Bibliotecas, Archivos y Museos – DIBAM)
How does this registry protect the author?
The registry places on record moral and Patrimonial Rights, facilitating the economic exploitation by the work’s titleholders, keeping the safeguard of the respective author/composer’s personal rights and the preservation of the reproduction of the works that these must hand over, in accordance with the intellectual property law.
It also avoids the commercialization, meaning, the collection of economic profit by third parties by means of play back or broadcasting of works that do not belong to them, and thus avoiding misuse and plagiarism. In the case of misuse of a registered work, its titleholder will be entitled to claim the damages derived from such misuse. This way the author will be able to prosecute before a civil court these damages, and eventually get a compensation for these, in turn the wrongdoer will be subject to the payment of a forfeit. This works as an effective deterrent, since the registered work certificate attests that a certain piece of work belongs to its author.
The registry of a work is vital under the hypothesis of misuse, because, as already mentioned, this registry will be authoritative proof of the ownership of the involved rights.
It is worth mentioning that author rights last for the entire life of the author, plus 70 years after his or her demise. The work becomes of public domain after said timespan.
In order to register a musical work or phonogram, this may be carried out online, in person or by mail.
To do so online, the interested party has to access the Department of Intellectual Property website and log into the registries service webpage and select the “registry of phonograms and related rights” option. Later a form has to be filled and sent with the information of the composer or creator of the work, as well as the phonogram’s information (title and publication date). Once the form is sent, the work that is to be registered has to be uploaded in a digital format.
Notice that that files larger than 10 MB are not allowed by the website’s system, and in order to carry out the registry, the interested party will have to personally attend to the Department’s office or submit through the postal service the work on a physical format.
Afterwards, the confirmation of the information takes place, a fee has to be payed, which it may vary depending on which method was used (online, in person or by postal service)
Finally DIBAM will assess if the phonogram fulfils the requirements so as to be registered, once approved, this organism will issue a certificate, attesting the registration at the Intellectual Property Registry
This registration, for phonograms and associated rights, also applies and it is available to companies and entities. The proceeding is similar to the one for individuals, which will depend of the status of the person that creates the work: the mandate for a work’s creation does not involve the granting of rights, unless it has been stated otherwise, for instance in a working contract or in a contract for the provision of services, which will pose as the general rule. The exception, on the other hand, will be the one in which the work’s author has a status of a public servant, in this case, in order for the individual to keep the authorial rights, it has to be stated in this way. If such statement is omitted, the titleholder of the author rights will be the public legal entity. In any case, the moral authorship rights of the work will always remain as the individual’s property.
The Chilean Society of Author Rights Role (SCD)
The SCD is a private corporation whose purpose is the administration of Intellectual Property Rights arisen from the use of musical works and phonograms. The works creator(s) are entitled to these rights and they are of a moral and patrimonial nature.
Moral rights are the ones related to the legal action that the author may enforce in order to keep his personal linkage with the work, namely, to object to the editing of the work without his previous consent, reclaim the work’s authorship, keep the work unpublished, among others; these rights are non-transferable and inalienable (with the exception of its transfer due to death, in which case is possible) and will be kept as the authors property even if patrimonial rights are transferred. Patrimonial rights are related to the commercialisation of the work.
Authorial rights entitle the work’s creator the right to allow or prohibit the usage of the work. At the same time it grants the ownership of the work to other individuals related to the author: surviving spouse, assignee, heirs, and legatees.
It is noteworthy that author rights are assigned also to the musicians, composers, editors and associated rights, and not to the author(s) exclusively.
According to the Law, every time a phonogram is broadcasted to the public, a monetary retribution has to be payed to the work’s titleholder. The SCD is collective management entity, which is entitled to inspect and collect these amounts. Thus, every time a musical work is “used” (radio and public access places broadcast among others) the SCD may collect such amounts to distribute them among the titleholders later on.
In addition, throughout reciprocity conventions and agreements signed between SCD and foreign authorial societies, the SCD is entitled to inspect and collect amounts of money for the use of international musical repertoire. Furthermore, when the ownership of the work belongs to several titleholders, which may live in different countries, the SCD centralises the authorization throughout the mandate issued by the local editors in order to obtain a global authorisation.
It is the payment of the rights the main reason for authors to register their work. Even though the actual authorial protection is granted by the work’s registry at the DIBAM. Now, the SCD when collects said amounts may distribute them among the authors, while deducting a share for them to keep.
In practice, due to the huge scale it has, it proves rather troublesome to inspect all musical broadcasting, on the other hand, it is difficult to contact the authors, who are mostly not in conditions to oversee the use that is given to their work.
Francisco Mulatti, Lawyer.
Photo: Jack Hamilton (CC0)