Mexico’s uncertain copyright future

I’m trying to finish a journal article before heading to the coast for Christmas, but since I’ve been posting about Mexico and copyright, it’s worth noting that despite the Mexican Senate’s rejection of the Anti-Counterfeiting Trade Agreement, the debate isn’t over by a long shot. The Mexican copyright debate continues to be, shall we say, interesting:

“There is still a chance that ACTA might live in Mexico,” said Leon Felipe Sánchez, professor at the Legal Department of the Universidad Natcional Autónoma de México and partner at Fulton and Fulton SC in Mexico City. With upcoming elections and a potential new government in office later in 2012 there might still be enough time to go back to the Senate and get another, this time ACTA-approving vote, he said, despite the opposition. The current Mexican Congress last summer rejected ACTA after an extensive consultation process.

Sánchez also sees several new initiatives by some of the very anti-ACTA advocates that aim at reforming Mexican IP law. The most prominent case of a convert currently reported about in Mexican blogs is Senator Frederico Döring Casar from the National Action Party (PAN), who started a legislative initiative that according to reports from Mexico would install a notification system managed by the Mexican Institute of Intellectual Property (IMPI), based on allegations of infringement from rights holders. The proposed bill will be further discussed in January.

With these and a number of similar reforms, the Mexican legislature might go ahead with implementing IP enforcement provisions and making ACTA practically irrelevant – or potentially easy to adopt later as an agreement that then would not change then existing Mexican law. Who could be against it then?

Further information on these developments here (in Spanish). Basically, the Senate has voted to enhance Mexican copyright authorities’ enforcement powers (though, as always, we’ll have to see how this translates into actual enforcement). Also, as mentioned above, a PRI senator who voted against ACTA has proposed an ISP monitoring law modeled on the French HADOPI law, a “three strikes” regime under which people accused of copyright infringement three times are fined or have their Internet access cut off.

Interestingly (to me, anyway), Senator Döring justifies his proposal by saying that copyright is a human right. This is particularly fascinating because Mexican copyright law has been pretty focused on copyright as an economic right since it reformed its legislation in response to U.S. demands during the North American Free Trade Agreement negotiations. This just goes to show that old ideas die hard, and that traditional, author-based conceptions of copyright can be easily used to defend owner-focused (i.e., corporate; few authors control their own copyrights) copyright reforms.

Back to the main question: How will these new developments affect ACTA’s chances in the Senate? My honest answer is I have no idea. The traditional, entrenched Mexican copyright interests (the collection societies, the content industries, the Mexican copyright authorities (IMPI, INDAUTOR), the United States), all of which tend to favour stronger copyright protection, are still there, and they still have clout. Similarly, it’s not likely that all of a sudden “the public” has displaced these entrenched interests. So it shouldn’t be a surprise if the Senate continues to pass pro-copyright legislation.

It does seem that at least a few Mexican academics also have concerns (in Spanish) with ACTA. This includes Ernesto Piedras, the go-to guy for info on the economics of the Mexican creative/cultural sector. The big (new) player in all of this is the telecoms industry. They have clout and allies within the government bureaucracy (the Communications and Transportation Department), and their interest is in ensuring that any new copyright law does not affect their bottom line. I would be surprised if this interest is not addressed in any eventual copyright reforms.

But I think the most important point is that there is any uncertainty at all as to what will happen. Back in 2003, the Mexican Congress approved, with minimal debate and almost unanimously, an extension in the term of copyright to a world-leading life of the author plus 100 years. Even one copyright-department official I talked with thought that was a bit much.

Now, however, the battle has been joined. Strengthening copyright protection is not a slam dunk. That’s a pretty huge deal.

As I’ve said before, how this plays out has the potential to tell us a lot about the future of copyright reform elsewhere. Stay tuned.

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