(Approved March 9, 2012) AN ACT

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1 (S. B. 2263) (No ) (Approved March 9, 2012) AN ACT To adopt a new statute that shall be known as the Puerto Rico Authors Moral Rights Act ; and repeal Act No. 96 of July 15, 1988, as amended. STATEMENT OF MOTIVES Copyright has been defined as the set of rights recognized by law to an author over the works he has produced with his own mind, especially those over works he is recognized and respected as the author of, as well as those that allow him to distribute such works and, as the case may be, authorizing or denying their reproduction. Puig Brutau, Fundamentos del derecho civil, Tomo III, Barcelona: Bosch, 1973, pp In Puerto Rico, intellectual property includes copyright, which, in turn, is constituted by the interaction of two rights: the patrimonial right, which consists of a monopoly over the use of the work; and the moral right, which protects the bond between the author and his work. Moral rights and patrimonial rights or copyright are two conceptions on literary and artistic property. The former arises from the continental legal system, particularly the French, whereas the latter arises from common law. Moral rights are constituted as emanating from the author himself: it recognizes the work as an expression of the author and as such it is protected. On the other hand, the protection of patrimonial rights is strictly limited to the work, without considering the moral attributes of the author with respect to his work. Patrimonial rights focus more on protecting the investment of time, effort, and capital that goes into producing an author s work, whether that investment is made by individual authors or corporate entities.

2 2 The term moral right comes from the French droit moral and refers to the ability of an author to control the eventual fate and use given to his artistic work. It relies on the connection between an author and his creation, regardless of the purely monetary value that the same may have. It sees the work as an extension of the author s personality so that it cannot be entirely disassociated from him, and even when he has waived patrimonial rights over such work, it continues to some extent to be dependent of him. Intellectual creations are linked to personal and labor rights, both of which are directly associated with the dignity of an individual. Intellectual labor can and should be recognized in social and economic terms. Depending on the cultural conception of what authorship means, it may include the author s right to receive or decline credit for his work, to prevent his work from being altered without his permission, to dictate how the work will be displayed, and to receive resale royalties. In civil law, the moral rights of an author have traditionally been classified as an extremely personal right, such as the right to life, to liberty and physical integrity, to privacy, to self-image, and others. Other countries, such as the United States, Canada, and England have been adopting legislation on moral rights that allow authors to prevent the distortion or alteration of their works, regardless of who is the actual owner, whether of the object itself or of the copyright thereto. The modern trend in several countries has been that, although exclusive to the author and non-transferrable, it is the authors who have the final say in any agreement regarding future moral rights claims in certain circumstances, especially with those that do business related to patrimonial rights with them. This allows for the opportunity to negotiate with the certainty that the volition of both parties shall be respected.

3 3 The Copyright Act of 1976 applies in Puerto Rico, which covers the reproduction rights of literary and artistic works, the creation of derivative works, distribution, representation, exposition, and presentation in public. On the other hand, the moral rights not contemplated under the federal law were recognized by the Spanish Intellectual Property Law of 1879, which was never expressly repealed. With the approval of Act No. 96 of July 15, 1988, as amended, known as the Intellectual Property Act, Puerto Rico adopted its own statute to regulate the so-called moral rights. Said Act was based on the Spanish legislation. In spite of the praiseworthy efforts to address these rights, many issues have been left unattended. At the international level, there is the Berne Convention for the Protection of Literary and Artistic Works, which is an international treaty on the protection of copyright as related to artistic and literary works. The Convention, approved in 1886, sets forth the moral right of attribution and integrity, as well as certain economic rights exclusive for translation, reproduction, execution, and adaptation of a work. The United States became a signatory of the Berne Convention in On December 1, 1990, after the United States became a signatory of the Berne Convention, Congress approved the Visual Artists Rights Act. Said statute embraces the basic civilist principle that the moral rights of an author must be protected. Said federal legislation applies only to works that have less than two hundred (200) copies. We must clarify the federal legislation is not preemptive, thus allowing states, and in this case, Puerto Rico, to legislate in favor of the moral rights of authors whenever the federal statute does not protect the same. As a matter of fact, states such as New York and California have approved legislation related to authors moral rights.

4 4 The main objectives of this measure are: 1) to achieve greater certainty and clarify some aspects about how moral rights are applicable; 2) minimize possible clashes with the statutory scheme of the Copyright Act; 3) temper our protections with the realities of the digital age so as not to hinder the Island s economic, educational, cultural, and creative development. Our artists play an important role in capturing the essence of our culture and preserving it for future generations to appreciate. There is an interest to clearly define the rights of artists, both for their sake and that of the public in general. Access to artistic works must be a priority for a society. Moreover, we must emphasize that such rights belong to the authors and the State must facilitate whatever it is that the former wishes to do with its creations, rather than limiting their abilities. The State must refocus its efforts towards that which supports fostering the arts, making the flow of works more flexible, and safekeeping the balance between society s access to a work and the control of such work by he who creates it. This measure includes several important aspects, namely a detailed definition of moral rights, the publicity nature of the Register, and the option to seek statutory damages. Lastly, the non-transferability of these rights is hereby clarified and it is set forth that, although in essence they cannot be waived, there are circumstances in which it is the author who must ultimately make a decision about when and to what extent they can be enforced in the agreements into which he enters. This Legislative Assembly deems it meritorious for Puerto Rico to enjoy a more comprehensive special Act on the moral rights of authors that adjust to current times while complementing the rights granted by federal copyright laws.

5 5 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF PUERTO RICO: Section 1.- This Act shall be known as the Puerto Rico Authors Moral Rights Act. Section 2.- Definitions a) Author - Natural person who generates a work. b) Moral Rights - The exclusive rights of an author over his work, which exist by virtue of the very personal relationship between an author and his work. They arise at the time the work is fixed by the author on a tangible medium of expression. It encompasses the following rights: i. Attribution - the right to be recognized as the author, whenever that is the case, as well as to prevent the attribution thereto of works that are not his. It includes the right to determine whether the work shall be published under his name, under a pseudonym or sign, or anonymously. ii. Withdrawal - the right to waive authorship whenever the work no longer conforms to his intellectual or moral convictions. iii. Integrity - 1. to prevent the mutilation, deformation, or alteration of the work so that it undermines the legitimate interests or reputation of the author. 2. to prevent the public presentation or distribution of a mutilated, deformed, or altered work that can undermine the legitimate interests or reputation of the author; and 3. to prevent the intentional or negligent destruction of the original or a sole copy of a work.

6 6 iv. Access - the right to demand reasonable access to the original or sole copy of a work whenever it is in the hands of another, so as to be able to exercise copyright. This right does not entail the movement of a work and access thereto shall be in such a way that causes the least inconvenience to its owner, who shall be compensated in his case for any expenses caused by exercising this right. c) Electronic Signature - the total electronic data recorded in an electronic message, document, or transaction, or attached or logically associated to such electronic message, document, or transaction, which can be used to identify the signor and indicate that he approves the information gathered in the message, document, or transaction. d) Work - original literary, musical, visual (plastic or graphic), dramatic or performing, artistic, or any other type of creation produced through intelligence and creative in nature, expressed in a tangible medium that is currently known or which may be invented in the future. e) Joint work - a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. f) Works made for hire that include: i. a work prepared by an employee as part of his/her duties; or ii. an especially commissioned or assigned work to be used as: i. a contribution to a collective work ii. part of a motion picture or other audiovisual work iii. a translation iv. a supplementary work v. a compilation vi. an educational text vii. a test

7 7 viii. an answer sheet for a test ix. an atlas if the parties expressly agree in a written document signed by them that it shall be considered a work made for hire. g) Person - Any natural person. Section 3.- Presumption of Ownership It shall be presumed as author whoever appears as such in the work by means of his name, signature, or identifying mark, unless there is evidence to the contrary. When a work is distributed anonymously or pseudonymously, whoever makes such work public shall be entitled to exercise the rights herein granted while the author s identity is not revealed, insofar as that person has the consent of the author. Section 4.- Co-authors In cases in which a joint work has two or more authors, the rights over such work shall be shared by all. This does not refer to an individual contribution made to a periodical publication or collective work. Section 5.- Term Moral rights shall last the author s lifetime plus 70 years after his death, or until the work enters public domain, whichever comes first. Section 6.- Standing After Author s Death After the death of the author, the person that such author had expressly indicated in writing shall exercise moral rights. In the absence thereof, the author s heirs shall exercise those rights. The right of withdrawal may only be exercised after the death of the author if such author has expressly stated in writing that it is to be done. Moral rights may not be exercised over works that have entered public domain.

8 8 Section 7.- Creation by an Employee or Independent Contractor Any work created as a work made for hire does not generate moral rights except if so provided in a written and signed agreement. This includes such work created by an employee in the normal course of his duties, as well as those created by an independent contractor under what is considered work made for hire, as defined herein. Section 8.- Transferability Moral rights are not transferrable except as provided in this Act. Section 9.- Waiver of Rights In general terms, moral rights cannot be waived. However, the author or rightful claimant may, through a written and signed document, waive his right of integrity in whole or in part. Such waiver may be established with an electronic signature. The waiver described in this Section can be executed at any time and shall be valid for a work even if the same was created prior to the effectiveness of this Act. In the case of a joint work that has two or more authors, a waiver from one of them shall suffice unless otherwise agreed. Section 10.- Exception to Protection The author or rightful claimant may not invoke moral rights when the work is legitimately used for purposes of criticism, parody or news, educational, or investigative comment. To determine whether the use is covered under this exception, the total of the circumstances shall be taken into account, including: a) the purpose of the use; b) the nature of the work; and c) the size and content of the part used as related to the work as a whole.

9 9 Section 11.- Remedies The violation of moral rights empowers the author or rightful claimant to seek temporary or permanent injunction to assert his rights, redress for damages, and financial compensation. In the case of registered works, when the violation of moral rights seeks mainly to obtain a business or financial benefit, the author or rightful claimant may opt for requesting the Court for recovery of an award of statutory damages in lieu of compensation or real damages. Statutory damages may be fixed at an amount of not less than $750 nor more than $20,000 per violation per registered work, at the discretion of the Court. Compensation shall be based on the number of registered works, regardless of the number of copies made of the work in question at any given time. If the case is resolved in favor of the author of a registered work or of its rightful claimant, the Court shall always fix the amount of legal costs, fees, and expenses in his favor. Section 12.- Statute of Limitation Any action or proceeding carried out in order to enforce any provision of this Act must be initiated not later than three (3) years after the affected person learns or should have learned about the facts that provide the grounds for the cause of action. Section 13.- Publicity Moral rights exist regardless of registration. The author of a work may voluntarily register the same with the Copyright Registry. Publicity shall be for reporting purposes only, and registration of a work shall not be required to exercise and enforce moral rights. Registration of the work shall constitute prima facie evidence of the validity of the author s moral rights and of the circumstances described in the certificate of registration in any lawsuit where said rights are the

10 10 object of controversy. Registration of the work shall allow for the option of requesting an award of statutory damages in case of violation of moral rights. Section 14.- Copyright Registry The Copyright Registry remains attached to the Department of State as created by virtue of Act No. 96 of July 15, 1988, as amended. Section 15.- Registrar The Copyright Registry shall be directed by a Copyright Registrar, who shall be appointed by the Governor of Puerto Rico with the advice and consent of the Senate. The Copyright Registrar shall be of legal age, an attorney-at-law who has been admitted to the bar within at least seven years before his appointment, and knowledgeable in the field of copyright and Puerto Rican intellectual activity. He shall have the same rank, salary, and term of office of a Superior Judge of the Court of First Instance and shall be considered a public officer pursuant to Act No. 447 of May 15, 1951, as amended, known as the Government Employees Retirement Act. Section 16.- Acquisition of Equipment; Regulations; Collection of Fees The Copyright Registrar shall have the power to acquire equipment and services according to the financial reality of the Registry. Furthermore, he may adopt regulations related to the registration, deposit, reproduction, and fees to be charged for the required activities. Provided, however, that a fee shall be charged for the presentation of the intellectual work submitted for registration and an additional fee for its registration, which shall be established through regulations by the Copyright Registry. The Registrar shall also adopt regulations concerning the acquisition and control of equipment and other acquired property, as well as the accounting of the funds, subject to the provisions of Act No. 230 of July 23, 1974, as amended, known as the Puerto Rico Government Accounting Act, and of Act No. 147 of

11 11 June 18, 1980, as amended, known as the Management and Budget Office Organic Act. Section 17.- Records of the Registry The Copyright Registrar shall maintain a register of intellectual works published in Puerto Rico which are the creation of Puerto Rican authors or of foreign persons domiciled in Puerto Rico, and of Puerto Rican works printed abroad to be sold, distributed, or reproduced in Puerto Rico, or any other use that their publication implies by request of the author or his rightful claimants. An unpublished original work may be registered upon request of the author. The Copyright Registrar shall issue a certificate containing all the information about the work found in the Registry. Section 18.- Registered Material Any kind of work, as defined in this Act, in which one or more natural or juridical persons have any authorship or proprietary interest may be registered in the Copyright Registry by request of the author or rightful claimants. Private and public contracts awarded in connection with the registered works may also be registered in the Copyright Registry at the request of one of the parties or rightful claimants. The registrations authorized in this Act shall have the effect of reserving the corresponding copyright on behalf of the author of the registered work or its rightful claimants. Section 19.- Copyright Stamp The Copyright Registrar shall adopt an official stamp that shall consist of a triangle with the letter (R) in its center, of a size and color to be determined by regulations. Said stamp shall be imprinted on every work registered and on any reproductions of the same, thus attesting that copyright is protected by such registration.

12 12 Section 20.- Deposit of Works The Copyright Registrar shall provide, through regulations, the most efficient and less onerous manner in which the works shall be registered and deposited, in accordance with the most recent and reliable technological developments. The deposit of two (2) copies or reproductions thereof shall be an indispensable requirement for copyright registration. Section 21.- Denial of Registration; Notification If the Copyright Registrar determines that a particular registration cannot be made pursuant to this Act or the regulations approved thereunder, the registration requested shall be denied and said denial shall be notified to the petitioner within fifteen (15) days following its receipt. The party interested in the registration shall have thirty (30) days as of said notice to resort to the Court of First Instance of the Superior Court of the courthouse where the work is located, and request a review of the Registrar s decision. The Registrar shall notify the reasons for the denial and advise the petitioner that he has thirty (30) days following the notification to appeal to the Court of First Instance, in the Superior Court of the courthouse where the work is located, through the corresponding review procedure. Section 22.- Issuance of Certificate At the request of any person and upon payment of the corresponding fees, the Copyright Registrar shall issue certificates of the records in his office regarding registered works, their authors, proprietors, and other pertinent data which, thus authenticated, shall become public documents admissible in any judicial or administrative proceedings.

13 13 Section 23.- Inspections and Copies The informative sheets and other documents found in the files of the Copyright Registry may be inspected and copied by interested parties upon payment of the corresponding fees, but such copies shall not constitute evidence of the Registry s records unless certified by the Registrar. Section 24.- Advice The Copyright Registrar shall organize the means to provide authors, designers, filmmakers, painters, engravers, architects, and any other creator of products arising from artistic, literary, or scientific work with sufficient advice and assistance so that they may use the mechanisms and other resources provided by law. Section 25.- Transitory Provisions The Copyright Registrar appointed by virtue of Act No. 96 of July 15, 1988, as amended, shall continue to hold office until the expiration of his original term of appointment. Section 26.- Act No. 96 of July 15, 1988, as amended, is hereby repealed. Section 27.- Severability Clause If any clause, paragraph, section, subsection, or part or this Act were held to be unconstitutional by a competent court, the ruling to such effect shall not impair or invalidate the remainder thereof. The effect of such holding shall be limited to the clause, paragraph, Section, subsection, or part of this Act thus held to be unconstitutional. Section 28.- Effectiveness This Act shall take effect immediately after its approval.

14 14 CERTIFICATION I hereby certify to the Secretary of State that the following Act No (S. B. 2263) of the 7 th Regular Session of the 16 th Legislative Assembly of Puerto Rico: AN ACT to adopt a new statute that shall be known as the Puerto Rico Authors Moral Rights Act ; and repeal Act No. 96 of July 15, 1988, as amended. has been translated from Spanish to English and that the English version is correct. In San Juan, Puerto Rico, on this 25 th day of May, Juan Luis Martínez Martínez Director

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