"(Artículo 1°.-Introdúcense las siguientes modificaciones en la ley N° 17.336: 1) (modified article 5 in the following way: to) (insert, in the literal u) item 5 °, then the word"fixation", the expression"permanent or temporary"and replace the conjunction"and"by"or"."
((b) add the following literal and): "and) service provider means, for the purposes of the provisions of chapter III of title III of this law, a provider of transmission, routing or connections for digital online communications, without modification of its content, between points specified by the user of the material selected, or a company provider or operator of online services or network access facilities.".
(2) replace the third subparagraph of article 8 th, by the following: "Connection of the computer programs produced on behalf of a third party, is shall treat as transferred to its copyright, unless written otherwise.".
(3) Reemplazanse the current first and second subparagraphs of article 10 by the following: "the protection afforded by this law lasts for the lifetime of the author and extends up to 70 years, counted from the date of his death.".
(4) delete, in the second paragraph of article 12, the sentence: "without prejudice to rights of a spouse referred to in article 10,", with the word "If" which follows with initial cap.
(5) incorporated, in article 37 bis, the following new second subsection: "this law does not apply to computer programs, when these are not the essential of the lease object.".
6) repeal the current paragraphs III (articles 38 to 45 bis) and IV (articles 46 to 47) of chapter V of title I.
(7) add the following third subparagraph in article 65: "Where necessary for the authorization of the author of a work incorporated in a phonogram and the authorization of the artist, performer and the phonogram producer, these should go without that exclude each other.".
(8) Insert, as new title III, the following, becoming the current title III title IV: "title III limitations and exceptions to copyright and related rights Article 71 to." When appropriate, the limitations and exceptions provided for in this title shall apply to copyright and related rights.
Article 71 B. The inclusion in a work is lawful, unpaid or authorization holder, short snippets of protected work that has been lawfully disclosed, and their inclusion is made by way of quotation or for purposes of criticism, enlightenment, education and research, provided that mention its source, title and author.
Article 71 C. It is permissible, without remunerating or obtaining authorization of the holder, any act of reproduction, adaptation, distribution or communication to the public of a lawfully published work, which is carried out for the benefit of people with disabilities visual, auditory, or other that prevent you normal access to the work, provided that such use relates directly to the disability concerned is carried out through a procedure or appropriate means to overcome the disability and non-commercial.
In the copies be expressly designated the circumstance to be made under the exception of this article and the prohibition of distribution and making available, at any title, people who do not have the respective disability.
Article 71 D. The lessons taught in institutions of higher education, colleges and schools, may be recorded or collected in any way by those who are addressed, but may be unpublished, totally or partially, without permission of their authors.
Conferences, political speeches, court pleadings and other works of the same nature that have been pronounced in public, may be used freely and without payment of remuneration, for the purpose of information, being reserved to its author the right to publish them on separate collection.
Article 71 E. Commercial establishments that expose and sell musical instruments, apparatus for radio or television or any device that allows the emission of sounds or images, they may be used freely and without payment of remuneration, works or phonograms with the exclusive order to make demonstrations to customers, provided that they are carried out within the own local or section of the establishment for this object and in conditions that prevent their dissemination abroad.
In the case of commercial establishments in equipment or computer programs to be sold, it will be free and without payment of remuneration, the use of protected works obtained lawfully, in the exclusive order to make demos to customers and under the same conditions mentioned in the preceding paragraph.
Article 71 F. The reproduction of works of architecture through photography, film, television and any other analogous proceedings as well as the publication of the corresponding photographs in newspapers, magazines and books and texts intended for education, is free and is not subject to remuneration, provided that it is not in collection separate, complete or in part, without permission of the author.
Also, by playing the photo, drawing or any other procedure, monuments, statues and, in general, the art works that permanently adorn squares, avenues and public places, is free and is not subject to remuneration, being lawful publication and sale of reproductions.
Article 71 G. In the works of architecture, the author may not prevent the introduction of modifications to the owner decide to, but may object to the mention of his name as the author of the project.
Article 71 H. The obligation referred to in article 30 shall not apply to advertising or propaganda films. It will not be mandatory to mention the name of the author in the advertising photographs.
Likewise, the provisions of article 37 bis shall not apply to computer programs, when these are not the essential of the lease object.
Article 71 I. Libraries and archives which are not for profit may, without requiring permission of the author or owner or payment of any remuneration, reproduce a work that is not available in the market, in the following cases: to) when the sample is in its permanent collection and this is necessary for the purpose of preserving such copy or replace it in the event of loss or damage up to a maximum of two copies.
(b) to replace a copy of another library or archive that has been lost, destroyed or disabled, up to a maximum of two copies.
(c) to incorporate a copy to their permanent collection.
For the purposes of this article, the copy of the work need not be available for sale to the public on the national or international market in the past three years.
Article 71 J. Libraries and archives which are not for profit may, without requiring authorization of the author or owner, or payment of any remuneration, make copies of fragments of works that are in their collections, at the request of a user of the library or archive exclusively for your personal use.
The copies referred to in the preceding paragraph only can be made by the respective library or archive.
Article 71 K. Libraries and archives which are not for profit, without requiring permission of the author or owner, or payment of any remuneration, be the electronic reproduction of works from its collection to be consulted free and simultaneously up to a reasonable number of users, only at terminals from networks of the respective institution and under conditions ensuring that electronic copies of these reproductions may not be.
Article 71 L. Libraries and archives which are not for profit, without requiring pay the holder or to obtain your authorization, be the translation of works originally written in a foreign language and legitimately acquired, when at the end of a period of three years counted from the first publication, or a year in the case of periodical publications, in Chile do not have been published his translation into Castilian by the holder of the right.
The translation must be made for research or study by users of such libraries or archives, and they may only be reproduced in partial citations in publications resulting from these translations.
Article 71 M. It is permissible, without remunerating or obtaining permission from the author, reproduce and translate for educational purposes, within the framework of the formal or authorized by the Ministry of education education, small works or Fragments of works isolated character plastic, photographic or figurative, excluding textbooks and University manuals, when such acts are only made for the illustration of educational activities as justified and non profit, that always concerned already disclosed works and include the author's name and the source, except in cases in which this is impossible.
Article 71 N. Not considered communication or public performance of the work, including being of phonograms, its use within the family, in schools, charities, libraries, archives and museums, provided that this use is effected without profit. In these cases do not require authorization of the author or owner or payment of any remuneration.
Article 71 n. The following activities relating to computer programs are allowed, without requiring permission of the author or owner or payment of any remuneration: to) the adaptation or copy of a computer program made by its holder, provided that the adaptation or copy is essential for use, or for archive or backup purposes and is not used for other purposes.
The adaptations in the designated form may not be transferred under any title, while mediate prior authorization from the respective copyright holder; also, copies obtained as indicated may not be transferred under any title, unless they are jointly with the computer program that served them as a matrix.
(b) the activities of reverse-engineering a copy obtained legally from a computational program carried out with the sole purpose of achieving the operational compatibility between computer programs or for research and development purposes. The information thus obtained should not be used to produce or market a similar computer program that goes against this Act or any other Act that infringes copyright.
(c) the activities that are carried out on a copy obtained legally from a computer program, with the sole purpose of test, investigate or correct operation or the safety or other programs, the network or the computer on which it is applied. The information derived from these activities may only be used for the aforementioned purposes.
Article 71 or. Provisional work playback, is lawful without requiring reward the holder or to obtain your authorization. This temporary reproduction must be transient or accessory; form an integral and essential part of a technological process, and having as sole purpose the lawful transmission in a network between third parties by an intermediary, or a lawful use of a work or other protected subject matter, that do not have independent economic significance.
Article 71 p. will be lawful satire or parody that constitutes an artistic contribution that distinguishes it from the work referred to, its interpretation, or the characterization of his interpreter.
Article 71 Q. Incidental and exceptional use of a work protected for the purpose of criticism, comment, caricature, teaching and academic interest or research, provided that such use does not constitute a covert exploitation of the protected work is lawful. The exception provided for by this article does not apply to audiovisual works of documentary character.
Article 71 R. You cannot, without requiring authorization of the author or owner, or payment of any remuneration, to perform the translation of works originally written in a foreign language and legitimately acquired, for the purpose of personal use.
Article 71 S. You may, without requiring permission from the author or owner, or payment of remuneration whatsoever, reproduce or communicate to the public a work for the realization of judicial, administrative and legislative actions.
(9) add the following article 72 bis: "article 72 Bis.-in the issue, the holder of a patrimonial right in a work may use the symbol"©"by prepending it to the year of first publication and his name."
As regards phonograms, copies of these or their shells, may submit a symbol "(p)" before the year of first publication and the name of the producer.
Natural or legal persons whose name appears right in the manner indicated in the preceding subparagraphs, shall presume as holders of the respective rights. "."
(10) replace the current chapter II of title III, which became a title IV, with the following: "chapter II actions and procedures paragraph I of infringements of the provisions of this law article 78." Violations of this law and its regulations do not expressly referred to in the articles 79 et seq., shall be punished by a fine of 5 to 50 monthly tax units.
Paragraph II of the offences against the intellectual property article 79. Commits lack or crime against intellectual property: to) which, without expressly being authorized to do so, use domain foreign works protected by this law, unpublished or published, in any form or by any of the means set out in article 18.
(b) that, without expressly being authorized to do so, use performances, productions and broadcasts protected holders of neighboring rights, with any of the purposes or by any of the means set out in title II.
(c) that it makes or adulterare a form of execution.
(d) that distort data in renditions of accounts referred to in article 50.
(e) which, without authorization of the owner of the rights or the law, you cobrare rights or would give licences in respect of works or of performances or phonograms which are found protected.
Designated behaviors will be penalized in the following manner: 1. where the amount of the caused prejudice is less than 4 monthly tax units, the penalty shall be imprisonment in any of its degrees or a fine of 5 to 100 monthly tax units.
2. when the amount of the damage caused is equal to or greater than 4 monthly tax units and less than 40 monthly tax units, the penalty shall be imprisonment in its minimum degree and a fine of 20 to 500 monthly tax units.
3. when the amount of the prejudice is equal to or greater than 40 monthly tax units, the penalty shall be imprisonment in its minimum degree and a fine of 50 to 1,000 monthly tax units.
Article 79 bis-which falsified work protected by this law, or who edit it, play or distribute falsely bearing the name of the authorized Publisher, suppressing or changing the name of the author or the title of the work, or maliciously altering its text, shall be punished with the penalties of imprisonment less in its minimum degree and a fine of 10 to 1,000 monthly tax units.
Article 80. Commits an offence against the intellectual property and will be punished with a penalty of a fine of 25 to 500 monthly tax units: to) who, knowingly, reproduce, distribute, make available or communicates to the public a work belonging to the public domain or the common cultural heritage under a name that is not the true author.
b) that atribuyere or reclamare economic rights in works of public domain or of the common cultural heritage.
(c) that forced payment in retribution for the execution or communication to the public of protected works, omits the making of corresponding implementation bills.
Article 81. Commits an offence against the intellectual property and will be punished with lower minimum degree imprisonment and fine of 50 to 800 monthly tax units, you may have to market, sell or rent directly to the public copies of works, performances or phonograms, whatever its support, reproduced in contravention to the provisions of this law.
That for-profit manufacture, import, interne to the country, have or purchase for commercial distribution the copies referred to in the preceding paragraph, shall be punished with the penalties of imprisonment less extent their medium to maximum and a fine of 100 to 1,000 monthly tax units.
Article 82. In the event of repetition of the offences envisaged in this law, shall apply the maximum penalties referred to for each of them. In these cases, the fine may not be less than twice the previous, and the maximum amount you can reach 2,000 monthly tax units.
Article 83. Regards the offences set forth in article 81, the penalty will increase to a degree if responsible formare part of a group or gathering of people to commit such crimes, without incurring charges of illicit association.
In the case of article 293 of the Penal Code, shall apply in addition a fine of 100 to 1,000 monthly tax units; and 50 to 500 monthly tax units in the case of article 294 of the Penal Code.
Article 84. Shall incur civil liability which, without authorization of the owner of the rights or the law, and know or should know that it will induce, will allow, facilitate or hide an infringement of any copyright or neighboring rights, do any of the following conduct: to) delete or alter any rights management information.
b) distribute, amount for distribution, issue, communicate or make available to the public copies of works or phonograms, knowing that rights management information has been removed or altered without authorization.
(c) distribute or amount for distribution, rights management information, knowing that rights management information has been altered without authorization.
That do any of the acts described in the preceding paragraphs, shall be punished with a penalty of a fine of 25 to 150 monthly tax units.
Article 85. For the purposes of the provisions of the preceding article, means that it is information rights management: to) information that identifies the work, the performer's performance or phonogram; the author of the work, the artist, performer or the producer of the phonogram; or the holder of any rights over the work, performance or phonogram.
(b) the information on the terms and conditions of use of the work, performance or phonogram.
(c) any number or code that represent such information, when any of these elements are attached to a copy of a work, performance or phonogram or appear in connection with the communication or making available to the public of a work, performance or phonogram.
Article 85 A. The amount of the damages referred to in this title shall be determined on the basis of the legitimate value of sale to the detail of the protected objects.
In the case of protected objects that do not have legitimate value, judge should prudently determine the amount of damages for the purposes of applying the penalty.
Paragraph III of the rules applicable to the Civil procedure and criminal article 85 B. The owner of the rights recognized by this law shall, without prejudice to other actions that are appropriate actions to ask: to) the cessation of the unlawful activity of the infringer.
(b) compensation for economic and moral damages caused.
(c) the publication of a summary of the judgment, at the expense of the respondent, by notice in a commercial newspaper of the Region concerned, at the choice of the injured party.
Article 85 C. The Court, at the request of the injured party, shall order that the specimens that have been product of a violation or offence contained in this law are destroyed or sections of the trade.
These specimens only may be earmarked for charity by the Court when it has authorization from the holder of the rights. In this case, the Court may decree the necessary measures to ensure that they returned not trade, ordering the marking of specimens, and decreeing the ban on disposal by the beneficiary.
Article 85 D. At any stage of the trial, the Court may order the following precautionary measures: to) the immediate suspension of the sale, circulation, display, execution, representation or any other form of allegedly infringing exploitation.
(b) the banning of acts and contracts on certain assets, including the prohibition of advertise or promote products or services because of the alleged infringement.
(c) retention of the allegedly illicit copies.
(d) the retention or sequestration of materials, machinery and implements that have been intended for the production of allegedly illicit copies, or allegedly infringing activity, when this is necessary to prevent future violations.
(e) the removal or removal of devices that have been used in the unauthorized communication to the public, unless the alleged offender to ensure that he not resume the infringing activity.
(f) the appointment of one or more auditors.
(g) the seizure of the product of the recitation, representation, reproduction, or implemented, up to the amount of copyright cautiously establishing the Court.
In regulated not by the preceding subsection, the enactment of these measures shall be governed by the General rules contained in title V of book II of the code of Civil procedure.
The measures provided for in this article may request, without prejudice to the preliminary ruling measures of titles IV and V of book II of the code of Civil procedure, as preliminary ruling, provided that are accompanying background allowing to reasonably prove the existence of the right claimed, the risk of an imminent infringement and give up bond sufficient, pursuant to article 279 of the code of Civil procedure.
Article 85 E. To determine the patrimonial prejudice the Court will consider, among other factors, the legitimate value of retail of goods upon which rests the infringement.
The Court may, in addition, order the offender to pay earnings that has been obtained, they are attributable to the infringement and that they have not been considered in calculating the damages.
Regardless of the existence of a patrimonial prejudice, for purposes of the determination of moral damage, the Court will consider the circumstances of the offence, the severity of the injury, produced undermining the reputation of the author and the target degree of illegal dissemination of the work.
Article 85 F. Doing effective compensation for damages, the Court may order, at the request of part and without prejudice the rights which can enforce third, seized and delivered to the holder of the right to the product of the recitation, representation, reproduction, execution or any other form of illegal exploitation.
Article 85 g. There is public action to denounce crimes punished under this law.
Article 85 H. It is presumed, unless evidence to the contrary, that copyright and related rights remain on a work or phonogram, whose first publication date is less than seventy years.
However, shall not apply the provisions of the preceding paragraph with respect to those works and related subjects that have passed into the public domain by expiration of the term of protection under this law or to previous laws.
Paragraph IV of the special rules applicable to Civil procedure article 85 I. In civil proceedings, the Court may order the alleged infringers to this law, the delivery of all information you have regarding other persons involved in the infringement, as well as all the background relating to the channels of production and distribution of exemplary offenders. The Court may apply fines of 1 to 20 monthly tax units to those who refuse to provide such information.
Article 85 J. The judge's letters in the civil matters which, according to the General rules know the trials to which the present law, gives rise it will brief and summarily.
Article 85 K. The holder of a right may request, once legally accredited the respective violation, compensation for economic and moral damages caused to be replaced by a compensatory lump-sum that will be determined by the Court in relation to the seriousness of the infringement, not being able to be greater than 2,000 monthly tax units for infringement. "."
(11) added in the current title III, that it became a title IV, the following new chapter III, becoming the current chapter III chapter IV.
"Chapter III limitation of liability of the providers of services of Internet Article 85 L." Without prejudice to the General rules on liability applicable in the case of those violations of the rights protected by this law committed by third parties, occurring through a system or network controlled or operated by natural or legal persons who provide some of the services indicated in the following articles, such service providers will be not obliged to compensate the damage insofar as they comply with the conditions laid down in the following articles to limit such liability, according to the nature of the service provided. In these cases, service providers may only be subject to pre-trial and judicial measures referred to in article 85 R.
Article 85 M. Providers of transmission of data, routing, or providing connections shall not be held responsible for data transmitted on condition that the provider: a) do not modify or select the content of the transmission. To these effects not be deemed content modification, the technological manipulation of material necessary to facilitate transmission through the network, such as the division of packages;
((b) he do not start transmission), and (c) does not select the recipients of the information.
This limitation of liability includes automatic or automatic and temporary copy of the data transmitted, technically necessary to run transmission, provided that this storage or automatic backup is not generally accessible to the public and is maintained not stored for longer than is reasonably necessary to carry out the communication.
Article 85 N. Providers that temporarily store data through a process of automatic storage shall not be considered responsible for the data stored on the condition that the provider: to) comply with the conditions of access of users and rules relating to the updating of the material stored by the supplier of the site of origin, unless those rules are used by this to prevent or unreasonably hinder the temporary storage referred to in this article;
(b) does not interfere with the compatible and standardized technology used in the source site for information on use of the stored material online, where the use of such technologies is carried out in accordance with the law and they are consistent with widely accepted industry standards;
(c) do not modify its content of transmission to others, and
(d) remove or disable in expeditious access to stored material that has been removed or has disabled that access their site of origin, when you receive a notification in accordance with the procedure laid down in article 85 Q.
Article 85 n. Service providers that at the request of a user store, by itself or through third parties, data on its network or system, or that perform search services, bonding and, or reference to an online information search tools, including hyperlinks and directories, not be held responsible of the data stored or on condition that the provider (: a) does not have actual knowledge of the illicit character of the data;
(b) does not receive an economic benefit directly attributable to the infringing activity, in cases in which it has the right and ability to control such activity;
((c) publicly designate a representative to receive the legal notifications referred to in the final subsection, in the manner determined by the regulation, and d) remove or disable access to the stored material in accordance with the provisions of the following paragraph in an expeditious manner.
Means that the service provider has actual knowledge when a competent court, in accordance with the procedure laid down in article 85 Q, has ordered the removal of data or blocking access to them and the service provider, being legally notified of the judgment, does not comply with it expeditiously.
Article 85 O. To enjoy the limitations of liability set forth in the preceding articles, the service providers, in addition, shall: a) have established General and public, conditions under which this may make use of the power to terminate contracts for content providers qualified judicially as repeat infringers of the rights protected by this law.
(b) not to interfere with technological measures of protection and management of protected works widely recognized and used lawfully.
(c) not have generated, or have selected the material or to their recipients.
Is it excepted from this obligation to service providers of search, link or reference to an online information search tools.
Article 85 P. Providers of services referred to in the preceding articles will not have, for purposes of this law, the obligation of monitoring data that transmit, store or reference or the obligation of active search for facts or circumstances indicating illegal activities.
The provisions of the preceding paragraph shall include without prejudice of any activity that the ordinary courts of Justice enact to investigate, detect and prosecute crimes or constituent practices of exercises related or abusive of rights recognized by this law.
Article 85 Q. For violations of the rights recognized by this law committed on or via networks or controlled or operated systems, or to service providers of the respective right holder or his representative may request as prejudicial or judicial measure which are designated in article 85 R. When the measures requested in interlocutory character, and provided that there are serious reasons to do so, they may issue without a hearing of the content provider, but must the applicant pay bond prior to the satisfaction of the Court. This application will be known by the judge of letters at the domicile of the provider, without prejudice to the criminal proceedings that could bring civil.
For these purposes, the application, in addition to fulfilling the requirements of paragraphs 1, 2 and 3 of article 254 of the code of Civil procedure, must clearly indicate: to) the rights allegedly infringed, including precise ownership of these and the modality of the infringement;
((b) infringing material), and (c) the location of the infringing material on networks or systems of the respective service provider.
Complied with the provisions of the preceding paragraph, the Court will Decree without delay the removal or blocking of the offending content. This resolution shall be notified by order to the respective service provider and by the State newspaper to the applicant.
The provider of affected content may, without prejudice to other rights, require the Court that decreed the order which rescission the measure of restriction of access to or removal of material. So you must submit an application that meets the same requirements referred to in the second paragraph and you must include all additional background which substantiate this request and implies your express acceptance of the jurisdiction of the Court is the issue.
This procedure will be processed shortly and summarily, and appeals will be granted only devolutive, enjoying preference for knowledge indeed and seen by the Court of appeal.
Article 85 R. In cases that have been fulfilled the General requirements of article reasonable measures will have 85 O and the requirements established in article 85 M, with respect to the functions of transmission, routing or delivery, the Court only as preliminary or judicial measure to block access to infringing content that is clearly identified by the applicant and which does not involve the blocking of other legitimate content , according to the provisions of the second paragraph of the preceding article.
In the cases that have been fulfilled the General requirements of article 85 O and the special requirements laid down in articles 85 N and 85 N, with respect to the functions mentioned in those articles, the Court only available as the following pre-trial or judicial measures: to) the removal or disabling of access to infringing material that is clearly identified by the applicant in accordance with the second paragraph of article 85 Q;
(b) the completion of certain accounts of repeat infringers of such service provider, which are clearly identified by the applicant in accordance with the second paragraph of article 85 Q, and whose owner is using the system or network for infringing activity to copyright and related.
All these measures will give with due consideration of the relative burden on the service provider, for users and for subscribers, the possible harm to the holder of copyright or related, the technical feasibility and efficiency measurement, and the existence of other forms of compliance less burdensome to ensure respect for the right of which is claimed.
These measures be enacted after giving notice to the provider of services, in accordance with paragraphs third, fourth and fifth article 85 Q, with the exception of the injunctions seeking to ensure the preservation of evidence or in the case of other injunctions deemed you won't have a real effect on the operation of the system or network of the service provider.
Article 85 S. The competent court, at the request of rights holders who have initiated the procedure laid down in the preceding article, may order the delivery of information that allows to identify the alleged offender by the respective service provider. The treatment of the data thus obtained shall be subject to the provisions of law N ° 19,628, on protection of private life.
Article 85 T. Who knowingly provide false information concerning alleged violations of the rights recognized by this law, shall indemnify the damages caused to any party concerned, if these damages are the result of actions it takes the supplier of network services based on such information, and it will apply provisions of article 197 of the Penal Code.
Article 85 U. Notwithstanding the previous provisions of this chapter, Internet service providers must notify in writing their users notices of alleged infringements which receive, provided that communication they receive meets the following requirements: to) request in electronic form or in other written form from the holder of the rights or his representative notice of the alleged violation;
(b) the holder of the rights or his representative must have domicile or residence in Chile and, where appropriate, have enough power to be placed on trial, on behalf of the holder;
(c) to identify the rights allegedly infringed, with precise indication of ownership of these and the modality of the infringement;
((d) identify the infringing material and its location in networks or systems of the service provider to whom communication, is sent through the URL or their equivalent, and e) contains data allowing the service provider to identify the user to the offending material course provider.
Providers of Internet services, once received a communication in accordance with the preceding paragraph, shall inform the allegedly infringing user this situation accompanying the background provided by the holder of the right or his representative, within a period of five working days from the receipt of the aforementioned communication. "."
(12) be added in article 88 the following new second subsection:
"However, by decision of the holder it can escape any of these works, so that they form part of the common cultural heritage. This exception shall not apply to the works carried out in the context of the own activity of public enterprises or in which the State has participation, when the work has a strategic direction for their purposes or when the law that creates it, and regulates expressly provided it. "."
(13) added in the second paragraph of article 92, between the expressions "to" and "remnants", the following phrase: "up to 10% of the proceeds and".
(14) Reemplazanse paragraphs fourth, fifth and sixth article 100, by the following: "management entities may differentiate the general rates according to category of user, and can be also alternative rate plans or special rates through the conclusion of contracts with associations of users, which can choose any user that is placed within the same category. The rates agreed pursuant to this provision shall be published in the official journal.
Fees to users with obligation of making spreadsheets, in accordance to the law or their respective licensing contracts, must be structured so that the application of these relates with the use of the works, performances or phonograms of holders represented by the respective collective management body.
The lack of preparation of the return or his making incomplete or false, will not give right to the application of the provisions of the preceding paragraph.
Unless agreed otherwise, they will be required to make execution returns or lists of works used the entertainment companies that based its activity on the use of musical works and the broadcasters. Other users will be exempted from the obligation of making forms of execution.
This article not be governed with respect to the management of the works literary, dramatic, dramatico-musical works, choreographic or pantomimicas, as, also, respect from those uses referred to in the second paragraph of article 21, unless the respective entity carry out collective management of the rights of these works. "."
(15) Agreganse the following articles 100 bis and 100 ter, new: "article 100 bis.-Notwithstanding the established in the third paragraph of the previous article, the associations with legal personality that represent users of copyright or related, that they had not reached an agreement with an entity from collecting on the amount of the fee, must submit the dispute to mediation" which will be binding for both parties.
Mediation is a non-adversarial procedure and shall encourage, by means of direct communication between the parties and with the intervention of a mediator, these from reaching an out-of-court settlement of the dispute. The mediators shall be entered in a public register of mediators and arbitrators in intellectual property that will lead the National Council for culture and the arts. Mediators and arbitrators referred to in the following article must have a professional degree, with at least five years of professional practice and experience qualified in the field of intellectual property, or in the area of economic activity. Registration procedures, the shape and characteristics of it, and that mediators and arbitrators fees must perceive will be determined by a regulation issued by the Ministry of education, within the six months following the publication of this law in the official journal, and signed by the Minister of economy, development and tourism. The publication of the notice referred to in the fourth subparagraph of this article shall be resolved by the part which disputed the rate.
The mediator shall be appointed by common agreement by the parties, and in the absence of agreement, the designation will be made by the judge of letters civil domicile of respective management, at the request of the Association of users or of the management body, among those enrolled in the public registry of mediators and arbitrators in intellectual property subject to the procedure of appointment of experts established in the code of Civil procedure. The designation made by the Court shall not be liable to recourse. To make this designation judge must verify, through the background provided by the parties, which is not a valid tariff determined conventionally or by arbitral judgment rendered, enacted within the three years prior to the filing date and that the controversial issue is not subject to mediation or arbitration, or has been subjected to mediation or arbitration in equal time. Check any of these circumstances, the judge will reject drawing the mediation request.
Once appointed the mediator, the judge will order to inform stakeholders, through the publication of a notice in a newspaper of national circulation, the circumstance be subject to mediation a determined rate, so that they take part in the mediation, in accordance with the provisions of the second paragraph of article 21 of the Civil procedure code.
The mediation process will not last more than 60 days from publication of the notice referred to in the preceding paragraph. However, the parties, by mutual agreement, may request the extension of this period.
During the procedure the mediator can summon all proceedings necessary for the fulfilment of the purposes of the mediation.
Within the ten days following the notification of the appointment of the mediator the parties must submit its well-founded proposals for tariff and uses for which it is applied, as well as the background on which decisions are based. Notwithstanding the above, in the course of the mediation, the parties may submit new rate proposals.
Where a party fails to appear, do not an established rate proposal or desist from the mediation, the proposed rate made by the other party shall be accepted by the only Ministry of law and will have enforceable judgment value. The mediator shall the previous circumstances in the minutes recorded.
In case of reaching agreement on some or all of the points subject to mediation, shall be recorded in an act of mediation, which, after being read by the participants, will be signed by them and by the mediator, leaving copy held by each of the parties and the mediator. This Act will have value of enforceable judgment. Rate adopted under this procedure, as well as which is determined in accordance with the preceding paragraph, may not be modified by the management entity respective, or undergo a new mediation, within a period of three years from the date of the Act of mediation.
If the original or extended deadline there is no agreement, the procedure means failed and a minutes, which must be signed by both parties. In the event that one does not want to or can not sign, shall recorded that the mediator, who will act as Minister of faith. After this, the parties may submit to arbitration which regulates the following article.
Article 100 ter.-in the event that mediation will fail totally or partially, the controversial issues must be subject to arbitration at the request of either party. To do so, either party may attend within thirty days from the date of the certificate referred to in the final paragraph of the preceding article, the judge's letters at the domicile of the respective management entity civil, accompanying the previous mediation Act, for purposes of initiating the procedure for appointment of the arbitral tribunal.
Period established in the preceding paragraph expires, not may be rates challenged a new mediation process but after the term of three years from the date of the respective mediation Act.
The arbitral tribunal shall be integrated by three arbitrators members arbitradores, governed by the articles 222 et seq. of the organic code of courts, one named by the Association of users, the other by the entity's management and a third by common agreement by the parties and, in the absence of agreement or in the absence of appointment by one of the parties, the designations will be carried out by the judge of letters civil domicile of the entity's management respective and are subject to the procedure of appointment of experts laid down in the code of Civil procedure, unless the parties can object to the designation. Referees must be previously registered in the register of mediators and arbitrators in intellectual property.
The Court shall set a date for the hearing of the parties, determine the notification mechanism that will be used to bring to the attention of these resolutions or decisions adopted and its standards and procedures, and must contemplate, in any case, the hearing of the parties, mechanisms to receive tests and background that they provide and the mode in which will formulate requests.
The parties must, in the scheduled hearing for the effect, provide in sealed envelope their respective well-founded proposals of final rates and uses which apply, together with the evidence and history underpinning them.
The unjustified parties failure to appear will be effect the acceptance of the proposal of the opposing party, in which case the Court must sentence within ten days. For these purposes, share must be accompanied, within third day, background justifying its failure to appear in the judgment of the Court.
To resolve the arbitration must consider, among other criteria, the user category, the pecuniary benefit obtained by the users of that category in the exploitation of the Repertoire or record of the entity, the importance of the Repertoire in the development of the activity of the users in that category, and the previous rates agreed by the parties or determined in a previous process.
In the course of the proceedings the Court may call on the parties to conciliation. Also, the parties can reach agreement, putting term to the procedure by the single presentation of the fees agreement reached. In the latter case, this agreement will be enforceable judgment value.
The Court, at sentencing, shall be limited to choose only one of the proposals of the parties submitted in a sealed envelope. The judgment of the Court will have value of enforceable sentence and will constitute a tariff plan alternative, and may qualify for these special rates any user who requests it. For these purposes, collective management should be available to the public the award or, if applicable, the agreement. Similarly, the Court shall send a copy to the Council for culture and the arts, which shall keep a public record of awards and agreements.
The rate adopted under this procedure may not be amended by the respective management entity, or submit to a new mediation or to a new arbitration, within a period of three years.
The Court must issue its decision within sixty days from its Constitution. Against the arbitral award only by an appeal may be brought in the form, according to the provisions of article 239 of the organic code of courts, and the remedy of complaint, according to the 545 articles and following the same code.
The appeal of correction, clarification or amendment, with the sole purpose of clarifying the conditions necessary for better implementation of the rate that is chosen by the Court, without altering the substantive conditions of the same will be also. Such an appeal may be brought within the period of fifteen days from the notification of the judgment.
The coasts of the process will be resolved by the party whose proposal of rates found discarded by the Court.
During the process of arbitration users may use the Repertoire or the registration of collective management whose rates were controversial, paying rates that had been paying prior to arbitration and if not any, that correspond to the set by management in accordance with the law. The difference resulting between the fare paid and the final will generate recalculation which will be determined in the arbitration decision. "."