Procedural means and mechanisms in the law are perfected. The IP owner’s right to exercise actions destined to cease the illicit activity, indemnify economic and moral loses and publish the subsequent judgment is recognized. As per request of said owner, the offending goods shall be destroyed or set aside from commerce and illicit copies can only be destined to charitable work with the express authorization of the IP owner.
New preventive measures destined to cease the illicit activity are granted. Thesemay be ordered in any stage of the trial andhave to be requested by the party. Undercertain conditions, these measures may berequested on a pre-judicial basis.
In order to calculate the compensation, theaffected party may choose between theremuneration the offender should have paidto the IP owner in order to acquire a properlicense or the profits lost due to the infringement. The legitimate sale value of the infringed goods shall be taken into account inorder to determine the pecuniary damage.In regards of the determination of moral damage, the judge shall consider the circumstances of the infringement, the seriousness ofthe damage and the objective degree of illicitspreading of the work.
3. New Exceptions to IP rights
The introduction of this chapter was motivated by the interest to balance the IP owner’srights with the rights of the community as awhole to legally access the protected creations. Therefore, a series of limitations and exceptions within the legal framework wereincluded, which grant access to cultural goods and the legitimate exercise of fundamental rights by the community, just as it isrecognized in most countries.
These exceptions shall be applicable to IPrights and to derivative works when appropriate.
The right to quote is extended and more thoroughly detailed, being the purpose of the use of the fragment the maincriterion. Right to quote may be used for criticizing, illustrating, teaching or investigative purposes.
Neither authorization nor payment shall be required, as long as the source, work’s title andauthor’s name are mentioned.
A new exception is set forth regarding the visually and hearing handicapped, as well asother kind of disabilities. Within this exception, the reproduction, adaptation, distribution and public communication of protected works is permitted, as long as there is nocommercial interest and is always performed within the scope of people suffering therespective disability.
Some anachronistic expressions are replaced, bringing about technological neutrality,like exceptions for libraries and archives, exceptions for educational purposes, exceptions applicable to satire and comedy, along with exceptions for computer software.Among the latter, two new exceptions are added in compliance with the US free tradeagreement. Said exceptions protect reverse engineering activities executed upon legally acquired software, with the sole purpose of achieving operative compatibility between software or for investigative and research purposes. On the other hand, activitiesexecuted with the sole purpose of testing, investigating or correcting the operation orsecurity of the computer in which the software is installed, are also protected.
A temporary copy exception is also added. This exception is subject to compliance with certain and specific conditions regarding its use, always within the framework of technological proceedings application.
Finally, the removal of article 45 bis must be emphasized, which established the so called “three step rule”, which is included in the Bern Convention and the TRIPS agreement of the World Trade Organization. This rule had been drafted as an imposition of additional conditions for the compliance of the old exceptions. Such removal was made with the intention to provide a more objective nature to the exceptions regime, thus avoiding the uncertainty caused by the need to provide additional explanations of such conditions.
1 This report states that Chilean’s IP performance is way below the expectations of a free trade agreementpartner.
2 Diario Financiero, Wednesday February 3rd, 2010, printed Edition.
