New liability regime for ISPs

August 6, 2010

2. Piracy Countermeasures

The current regime of civil and criminaloffenses of IP rights is considered inade­quate by many. The increase of piracy inChile, which keeps it in the priority watch list in the “2010 Special 301 Report” ¹ prepared by the US Trade Representative Office,brought about the need to modernize the tools that would allow a better protection for theIP owners, establishing effective measures against violations commonly referred to aspiracy by means of civil and criminal actions.

Specifically, there is the intention of fighting piracy and unauthorized uses by means of more and better legal actions for use in the investigation and harsher punishment for the offenses. This should be a very relevant issue for the international public opinion, since piracy in Chile doubles that of the OCDE country members, according to the Business Software Alliance. ²

The IP Law Modification sets out a new chapter of civil and criminal sanctions to the infrin­gement of IP rights and derivative works, as well as new mechanisms and procedural tools to be used in case of uses outside the

legal framework.

This chapter stands out because of the reunion of several different criminal offen­ses, which used to be dispersed throug­hout the regulation. New offenses are incorporated as well, with penalties gra­duated according to the damage inflicted,

therefore introducing objective factors thatallow a more fair sanction. The supplemen­tary sanction for not categorized violationsis kept, which corresponds to a fine of 5 to50 UTM.

In general terms, the criminal penalties are also kept, but the amount of the fines is hea­vily increased, leveling with those establis­hed in the Industrial Property Law.

The IP Law Modification describes as offenses:

-Any unauthorized use of IP protec­ted works and interpretations, produc­tions and broadcastings of derivative works.

-Forgery of literary, scientific or artistic works protected by law; of exe­cution charts; of the number of effecti­vely sold copies; of standing to authori­ze the use of IP rights or licenses regar­ding performances or interpretations ofprivate domain sound recordings.

-Plagiarism of IP protected works,whenever the author’s name is changedor deleted or the title of the work or its text is maliciously altered.

-Omission to make execution charts by those obliged to pay retribution basedon the use of IP rights or derivative works,whenever those charts are necessary forthe collective management of IP rights; andthe forgery or adulteration of said executioncharts and certain data in the state of account.

Piracy is a central element in this modifica­tion, seeking to substantially improve thelegal framework applicable to individualsand criminal organizations dedicated to theillegal manufacture, distribution and marke­ting of products or creations. Therefore, aspecific criminal regulation is established incase of piracy, increasing up to two degrees the maximum penalty applicable. The lawdistinguishes the marketing of illicit copiesor protected works from those who, withintent to make a profit, manufacture, import,have or acquire for commercial distributionor rental purposes said illicit copies. Repea­ted offenders are strongly penalized.