The Philosophical Approaches to Intellectual Property and Legal Transplants. the Mexican Supreme Court and NAFTA Article 1705

By Barbosa, Roberto Garza | Houston Journal of International Law, Summer 2009 | Go to article overview

The Philosophical Approaches to Intellectual Property and Legal Transplants. the Mexican Supreme Court and NAFTA Article 1705


Barbosa, Roberto Garza, Houston Journal of International Law


  I. INTRODUCTORY NOTE

 II. UTILITARIAN OR PUBLIC INTEREST

III. NATURAL RIGHTS

 IV. MORAL RIGHTS

  V. NAFTA ARTICLE 1705(3) AND THE MEXICAN SUPREME
     COURT DECISIONS

     A. NAFTA Article 1705

     B. Mexican Copyright Act

     C. Mexican Supreme Court Decisions

 VI. CONCLUSION

I. INTRODUCTORY NOTE

Some philosophical approaches are so deeply attached to legal systems that any legal development based on another normative justification would be misread or just neglect it. This seems to be the particular case of the Mexican Supreme Court regarding the North American Free Trade Agreement [hereinafter NAFTA] Article 1705(3). (1) This paper analyzes both common law and continental (or civil law) normative approaches to copyrights. It also explains the continental conceptions about authors' rights that played a significant role in two recent decisions of the Mexican Supreme Court on the issue of alienability restrictions in the Mexican Copyright Act.

NAFTA Article 1705 binds parties to provide transfers without any restriction for copyrights and related rights. (2) The Mexican Copyright Act establishes certain constraints on free alienability of copyright and related rights. (3) These constraints include restrictions on the assignment of authors' rights in general, and those assignments are not to exceed fifteen years. (4) Also, the Copyright Act contains a right of remuneration for public broadcasting and communication granted to performers, phonogram producers, and authors. (5) This right is defined by the Mexican Copyright Act as non-transferable. (6) Consequently, under a facial interpretation of the statute, this right cannot be waived by contract. (7) Alienability restrictions on copyrights are normal in civil law countries. (8) Those restrictions are mainly due to several normative justifications for authors' rights. The purpose of this Article is to explain briefly common law and continental normative justifications for copyrights. It also attempts to explain how the Mexican Supreme Court deals with the contradiction between NAFTA Article 1705(3) and several provisions of the Mexican Copyright Act in recent decisions on the issue. It is important to explore whether those continental normative justifications present in the statute are also present in the recent decisions of the court, whether directly, or merely as a subtle influence that made the court misread NAFTA Article 1705(3).

The most important philosophical approaches or normative justifications for copyright law are instrumentalism or utilitarianism, natural rights based principally on Locke, and moral rights based on Kant and Hegel. (9)

This Article includes a brief explanation of each of these normative justifications in the following order: instrumental or utilitarian justifications, natural justifications and moral rights justifications. All of these developments help explain different views of the perception of copyright law. Having explained and compared these normative justifications, the paper analyzes Article 1705(3) and the recent decisions of the Mexican Supreme Court related to alienability restrictions of copyrights. Before exploring these philosophical justifications, this paper will discuss copyright evolution and its justifications around the world.

There are several justifications for copyright. In the United States, for example, copyright is conceptualized by some as a utilitarian device designed to promote the creation of artistic or useful works that will benefit society. (10) This approach is based on a utilitarian justification. (11) Another predominant common law normative justification defines copyright as a natural right over property, justified by the labor of its creator. (12) This is the natural right justification based on Locke. (13) Both utilitarian and natural rights justifications are present mostly in the United States and other civil law systems. …

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