Argentina: Bill To Expand Copyright On Photographs To Life-Plus-70 Years Introduced In Argentine Congress

By Maximiliano Marzetti

Bill No. 2517-D-2015, presented by Liliana Mazure, Gloria Bidegain, Susana Canela, Gastón Harispe, Héctor Recalde and Eduardo Seminara, was introduced to the Argentine Congress to reform the Argentine Copyright Act (Law No. 11.723) in order to extend copyright over photographic works to life plus 70 years post mortem auctoris. The current period of protection for photographs in Argentina is 20 years since publication (article 34). In case the bill is passed it will have retroactive effect, i.e. photographs that today are in the public domain will revert to private property.

Enrique Chaparro, President of Vialibre, an NGO that represents an eclectic group of institutions that support the public domain, has expressed the sector’s concern in a letter addressed to the legislators.[1] If the bill becomes law thousands of photographic works would have to be removed from the National Library, the National Archive, Trapalanda (a recently created publicly-funded digital library and archive),[2] Wikipedia Argentina, Wikimedia Commons, and similar sites.

[updated] The bill that extends copyright of photographic works to life plus 70 years p.ma. refers to WIPO’s Copyright Treaty (WCT), that Argentina ratified by Law No. 25140. But the bill goes beyond, as the treaty only obliges member countries to grant copyright for photographic works for a minimum period of 50 years p.m.a.

In addition the bill does not make a distinction between photographic works of art (reflecting the author’s personality and receiving full term protection) from mere photographs (the others and receiving a lower term of protection), like the EU Directive 93/98/EEC of 29 October 1993 does (harmonizing the term of protection of copyright and certain related rights). [end update]

President Juan Domingo and Evita Perón, from the national archives

The legislators that introduced the bill seem oblivious to the effect of such a reform on the functioning of key public institutions, namely national libraries and archives. According to a study commissioned by WIPO, out of 186 countries in the world Argentina is one of only 33 [corrected] that have no exceptions and limitations whatsoever for national libraries and archives to fulfil their roles.[3] The bill includes no safeguard in this regard.

Moreover, as this author has already expressed in the past, the Argentine Copyright Law is one of the most restrictive of the world, without a fair use doctrine and with very limited and narrow exceptions and limitations.[4]

This bill can be seen as one more of in a trend by the ruling party’s legislative block to extend economic rights further: Bill 1640-D-2006 (dismissed) pretended to extend copyright to life plus 80 years p.m.a.; whereas Law No. 26.570 effectively extended the term of protection of neighboring rights (from 50 to 70 years).

Photographers may not necessarily be the beneficiaries of the bill; cultural industries and collective agencies certainly are. Losers are all the rest of Argentine citizens. Any similarity with an episode of rent seeking and regulatory capture may not be pure coincidence.

[1] Full text of the letter (in Spanish): http://www.vialibre.org.ar/wp-content/uploads/2015/09/carta_diputados_fotos.pdf

[2] http://trapalanda.bn.gov.ar/jspui/handle/123456789/102

[3] Full text of the study: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_29/sccr_29_3.pdf.

[4] See my free book:

http://www.clacso.org.ar/libreria-latinoamericana/buscar_libro_detalle.php?campo=autor&texto=Marzetti&id_libro=826.

Maximiliano Marzetti is a qualified lawyer, intellectual property consultant and scholar. He obtained his law degree from the Pontificia Universidad Católica Argentina where he also taught commercial law. He earned two master of law degrees, one from the Università degli Studi di Torino in intellectual property and another from the Universität Hamburg in law and economics. He was awarded an Erasmus Mundus grant by the European Commission, a semi-senior research grant by the Latin American Council of Social Science (CLACSO), served three times as foreign scholar (Stipendiat) at the Max Planck Institut für Geistiges Eigentum, Wettbewerbs- und Steuerrecht in Munich, Germany, and also provided legal counsel to the XX Winter Olympic Games Organizing Committee in Turin, Italy. He is currently a lecturer of Intellectual Property Law and Economics at the Latin American School of Social Science (FLACSO) and Universidad Torquato Di Tella, Argentina, and visiting lecturer in various Latin American universities.