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INTELLECTUAL PROPERTY RIGHTSANDEAN COMMUNITY
Decision 351: Common Provisions on Copyright and
CHAPTER I: SCOPE OF PROTECTION
Article 1.- The provisions of this Decision are intended to afford adequate and effective protection to the authors of and other owners of rights in intellectual works in the literary, artistic or scientific field, whatever their nature or form of expression and regardless of their literary or artistic merit or purpose.
The neighboring rights referred to in Chapter X of this Decision are likewise protected.
Article 2.- Each Member Country shall grant the nationals of other countries protection no less favorable than that accorded to its own nationals in matters of copyright and neighboring rights.
Article 3.- For the purposes of this Decision:
Article 4.- The protection granted by this Decision shall accrue to all literary, artistic and scientific works that may be reproduced or disclosed by any known or future means, including the following in particular:
Article 5.- Without prejudice to the rights of the author of the preexisting work and subject to his prior authorization, translations, adaptations, transformations or arrangements of other works shall be intellectual works distinct from the originals.
Article 6.- The rights recognized by this Decision shall be independent of the ownership of the material medium in which the work is embodied.
Article 7.- Only the form in which the ideas of the author are described, explained, illustrated or incorporated in the works shall be protected.
Neither the ideas contained in literary and artistic works, or the ideological or technical content of scientific works, nor the industrial or commercial exploitation thereof shall be eligible for protection.
CHAPTER III: OWNERS OF RIGHTS
Article 8.- In the absence of proof to the contrary, the person whose name, pseudonym or other identifying mark is visibly shown on the work shall be presumed to be the author thereof.
Article 9.- A person other than the author, whether natural person or legal entity, may advertise ownership of the economic rights in the work in accordance with the provisions of the domestic legislation of the Member Countries.
Article 10.- Natural persons or legal entities shall exercise original or derived ownership, according to national legislation, of economic rights in works created for them on commission or by virtue of employment relations, in the absence of proof to the contrary.
CHAPTER IV: MORAL RIGHTS
Article 11.- The author shall have the inalienable, unattachable, imprescriptible and unrenounceable right:
On the author's death, the exercise of moral rights shall pass to his successors in title for the period referred to in Chapter VI of this Decision. Once the economic rights have lapsed, the State or designated agencies shall assume the defense of the authorship and integrity of the work.
Article 12.- The domestic legislation of the Member Countries may grant other rights of moral character.
CHAPTER V: ECONOMIC RIGHTS
Article 13.- The author, or his successors in title where applicable, shall have the exclusive right to carry out, authorize or prohibit:
Article 14.- Reproduction shall be understood to mean the fixing of the work on a medium that permits it to be communicated or copies of all or part of it to be made by any means or process.
Article 15.- Communication to the public shall be understood to mean any act by which two or more persons, whether or not they are gathered together in the same place, may have access to the work without the prior distribution of copies to each one of them, and especially the following:
Article 16.- The authors of works of art and, on their death, their successors in title shall have the inalienable right to be granted a share in the successive sales of the work by public auction or through a professional art dealer. The Member Countries shall enact provisions on the said right.
Article 17.- The domestic legislation of the Member Countries may grant other rights of economic character.
CHAPTER VI: TERM OF PROTECTION
Article 18.- Without prejudice to the provisions of Article 59, the term of protection of the rights provided for in this Decision shall be not less than the life of the author and 50 years after his death.
Where the ownership of the rights accrues to a legal entity, the term of protection shall not be less than 50 years counted from the making, disclosure or publication of the work, as the case may be.
Article 19.- The Member Countries may provide, in accordance with the Berne Convention for the Protection of Literary and Artistic Works, that the term of protection for particular works shall be counted from the date of the making, disclosure or publication thereof.
Article 20.- The term of protection shall be counted from January 1 of the year following that of the death of the author or that of the making, disclosure or publication of the work, as appropriate.
CHAPTER VII: LIMITATIONS AND EXCEPTIONS
Article 21.- The limitations and exceptions to which copyright is made subject by the domestic legislation of the Member Countries shall be confined to those cases that do not adversely affect the normal exploitation of the works or unjustifiably prejudice the legitimate interests of the owner or owners of the rights.
Article 22.- Without prejudice to the provisions of Chapter V and those of the foregoing Article, it shall be lawful, without the authorization of the author and without payment of any remuneration, to do the following:
CHAPTER VIII: COMPUTER PROGRAMS AND DATA BASES
Article 23.- Computer programs are protected on the same terms as literary works. That protection shall extend not only to operating programs but also to application programs, in the form of either source codes or object codes.
In such cases the provisions of Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works on moral rights shall be applicable.
Without prejudice to the foregoing, the authors or owners of the computer programs may authorize such modifications as are necessary for the correct use of programs.
Article 24.- The owner of a lawfully circulating copy of a computer program may make a copy or adaptation of the said program insofar as:
Article 25.- Reproduction of a computer program, including for personal use, shall require authorization by the owner of the rights, with the exception of a backup copy.
Article 26.- The introduction of a computer program in the memory of the computer concerned for the purposes of exclusive personal use shall not constitute unlawful reproduction of the said program.
It is consequently not lawful, without the consent of the owner of the rights, for two or more persons to make use of the program by means of the installation of networks, workstations or other comparable facilities.
Article 27.- The adaptation of a program created by the user for his sole use shall not constitute transformation within the meaning of this Decision.
Article 28.- Data bases shall be protected insofar as the selection or arrangement of the contents constitute an intellectual creation. The protection granted shall not extend to compiled data or information, but it shall not affect any rights subsisting in the works or material constituting the said data base.
CHAPTER IX: TRANSFER AND ASSIGNMENT OF RIGHTS
Article 29.- Copyright may be transferred by succession in accordance with the provisions of the applicable national legislation.
Article 30.- The provisions on the transfer or assignment of economic rights and on licenses for the use of protected works shall be governed by the provisions of the domestic legislation of the Member Countries.
Article 31.- Any transfer of the economic rights, and also authorizations or licenses for use, shall be understood to be limited to the forms of exploitation and other procedures expressly agreed upon in the relevant contract.
Article 32.- In no case may the legal or compulsory licenses provided for in the domestic legislation of Member Countries exceed the limits permitted by the Berne Convention for the Protection of Literary and Artistic Works or by the Universal Copyright Convention.
CHAPTER X: NEIGHBORING RIGHTS
Article 33.- The protection provided for neighboring rights shall in no way affect the protection of the copyright in scientific, artistic or literary works. Consequently, none of the provisions contained in this Chapter may be interpreted in such a manner as would diminish the said protection. In the event of conflict, the author's best interests shall always prevail.
Article 34.- Performers shall have the right to authorize or prohibit the communication to the public of their live performances in any form and the fixing and reproduction of their performances.
Nevertheless, performers may not object to the communication to the public of their performances where they in themselves are broadcast performances or are made from a previously authorized fixation.
Article 35.- In addition to the rights recognized in the foregoing Article, performers shall have the right to:
Article 36.- The term of protection of the economic rights of performers may not be less than 50 years counted from January 1 of the year following that in which the performance took place or in which the fixation, if any, was made.
Article 37.- The producers of phonograms shall have the right to:
Article 38.- The term of protection of the rights of producers of phonograms may not be less than 50 years, counted from January 1 of the year following that in which the fixation occurred.
Article 39.- Broadcasting organizations shall enjoy the exclusive right to authorize or prohibit:
Article 40.- The broadcast referred to in the foregoing Article shall include the production of program-carrying signals intended for a broadcasting or telecommunication satellite, and also distribution to the public by a body that broadcasts or disseminates the transmissions of others received by means of such a satellite.
Article 41.- The term of protection of the rights of broadcasting organizations may not be less than 50 years, counted from January 1 of the year following that in which the broadcast occurred.
Article 42.- In the cases allowed by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, the domestic legislation of the Member Countries may set limits on the rights recognized in this Chapter.
CHAPTER XI: COLLECTIVE ADMINISTRATION
Article 43.- Societies for the collective administration of copyright and neighboring rights shall be subject to inspection and supervision by the State, and shall be required to obtain the appropriate operating license from the competent national office.
Article 44.- The affiliation of owners of rights to a society for the collective administration of copyright or neighboring rights shall be voluntary, unless expressly provided otherwise in the domestic legislation of the Member Countries.
Article 45.- The license referred to in Article 44 shall be granted subject to compliance with the following requirements:
Article 46.- In the event of failure to comply with the provisions of this Chapter, the license of the collective administration society concerned may be revoked in accordance with the provisions of the domestic legislation of the Member Countries.
Article 47.- The competent national authority may impose the following sanctions on collective administration societies:
Article 48.- The royalties to be collected by the collective administration societies shall be proportional to the income derived from the use of works, artistic performances or phonographic productions, as the case may be, except where expressly provided otherwise in the domestic legislation of the Member Countries.
Article 49.- Collective administration societies shall be empowered, in terms specified in their own statutes and in the contracts that they conclude with foreign societies, to exercise the rights entrusted to them for administration and to assert those rights in administrative and judicial proceedings of any kind.
Article 50.- For their action to be enforceable against third parties, collective administration societies shall be obliged to register with the competent national office, in terms specified by the domestic legislation of the Member Countries, the names and titles of the members of their governing bodies, and also the instruments evidencing the mandates that they exercise on behalf of foreign associations or organizations.
CHAPTER XII: COMPETENT NATIONAL COPYRIGHT AND NEIGHBORING RIGHTS OFFICES
Article 51.- National copyright and neighboring rights offices shall be competent to:
Article 52.- The protection afforded to literary and artistic works, performances and other productions covered by copyright and neighboring rights in accordance with this Decision shall not be subject to any kind of formality. Consequently, failure to register shall not prevent the enjoyment or exercise of the rights recognized in this Decision.
Article 53.- Registration shall be merely declaratory and shall not itself confer rights. Nevertheless, entry in the Register shall constitute a presumption that the facts and acts recorded in it are true, in the absence of proof to the contrary. Any entry shall be without prejudice to the rights of third parties.
Article 54.- No authority or person, whether natural person or legal entity, may authorize the use of a work, performance, phonographic production or broadcast, or lend his support to such use, if the user does not have the express prior authorization of the owner of the rights or his representative. In the event of non-compliance, that authority or person shall be jointly liable.
CHAPTER XIII: PROCEDURAL ASPECTS
Article 55.- The procedures to be conducted before the competent national authorities shall observe due and adequate legal process, according to the principles of procedural economy, speed, equality of the parties before the law, efficiency and impartiality. They shall likewise permit the parties to have knowledge of all the procedural acts, except where specially provided to the contrary.
Article 56.- The competent national authority may order the following precautionary measures:
Precautionary measures shall not be applicable to a copy acquired in good faith for exclusively personal use.
Article 57.- The competent national authority may likewise order the following:
CHAPTER XIV: COMPLEMENTARY PROVISIONS
Article 58.- Computer programs, being works expressed in writing, and data bases, having the character of compilations, shall enjoy protection by copyright even where they have been created prior to the date of entry into force of this Decision.
Article 59.- Shorter terms of protection that are still current by virtue of the domestic legislation of the Member Countries shall be automatically extended to the expiration of the terms provided for in this Decision.
Nevertheless, the terms of protection specified in the domestic legislation of the Member Countries shall be applied where those terms are longer than the terms provided for in this Decision.
Article 60.- The rights in works that did not enjoy protection under national legal provisions prior to this Decision, owing to their not having been registered, shall automatically enjoy the protection recognized by this Decision without prejudice to rights acquired by third parties prior to the entry into force thereof, provided that it concerns use that has already been or is being made on the said date.
Article 61.- The Member Countries undertake, with a view to the consolidation of a system of communal administration, to ensure the best application of the provisions contained in this Decision, and to promote the autonomy and modernization of the competent national offices and of information systems and services.
CHAPTER XV: TRANSITIONAL PROVISIONS
Provision 1.- Existing collective administration societies shall conform to the provisions in Chapter XI within a period not exceeding three months counted from the date of entry into force of this Decision.
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