Amendments to various provisions of the Mexican Federal Copyright Law were approved to conform to the dispositions of our new Free Trade Agreement named United States, Mexico and Canada Agreement (USMCA), which will take effect on July 1st, 2020.
Thus, on July 1st, 2020, an important reform to the Mexican Federal Copyright Law was published in the Official Gazette.
It must be noted that, as commented in the previous publications in this section, before these amendments, Mexico had no provisions regarding obligations or liability for ISPs related to the unauthorized display of copyrighted contents.
Although Mexico had already signed the TPP 11 or CPTPP on April 24, 2018, members decided to suspend 11 (eleven) provisions contained in Chapter 18, including those related to ISPs liability.
So it is the first time that Mexico has adopted legal provisions dealing with ISPs liability, basically to adapt Mexican copyright legislation to meet the demands provided in Chapter 20 of the USMCA, specifically the ones addressing this matter, included in Article 20.88
´These recent amendments have introduced Articles 114 Septies and 114 Octies, into the existent Mexican Federal Copyright Law, containing all the provisions related to ISP’s liability. The drafting of such provisions unfortunately lacks the detail and clarity that are present in other regulations on the same topic. And, moreover, certain issues will only be clarified when the corresponding amendments to the Regulations of the Federal Copyright Law are issued, and the executive power has a term of 180 days as of the publication of the decree commented hereby, to issue the corresponding amendments to the Regulations.
First, the amendments to the law begin defining Internet Service Providers by distinguishing between Internet Access Providers and On-line Services Providers. Both shall be considered as Internet Service Providers for the purposes of this law.
An Internet Access Provider is defined as: “a person (legal or natural) who transmits, routes or provides connections for on-line digital communications, without modification of content, between points specified by a user, of material selected by the user, or who performs intermediate and temporal storage of such material made automatically in the course of transmitting, routing or providing connections for on-line digital communications”.
An Internet On-line Services Provider is defined as: “a person (legal or natural) that conducts any of the following functions:
a) caching carried out by an automated process.
b) hosting requested by a user of material or content located in a system or network controlled or operated by or for an Internet Service Provider.
c) routing or connecting users to a web site through search engines, including hyperlinks and directories.
Article 114 Octies, provides a general exception from liability, it determines that ISPs shall not be liable for damages and prejudice caused to copyright and neighboring rights’ owners for the infringement to such rights that may occur in their online systems or networks, controlled or operated by them, provided that they do not control, initiate or direct the infringing conduct, according to a set of safe harbors that are different for Internet Access Providers (contained in Section I of Article 114 Octies) than for Online Services Providers (contained in Section II of the aforementioned article).
The safe harbors that except Internet Access Providers from liability are basically that they do not initiate the transmission of the materials or content and that they do not take part in the selection of such materials or content. Also, they shall use and not tamper with technological protection measures.
In the case of Online Services Providers, the amendment provides that they shall not be liable as long as they “promptly and readily” take down , remove, block or eliminate access to any content displayed, made available or transmitted without the consent of the copyright or neighboring right owner, that may be hosted or stored in their systems or networks, once the provider has become aware “with certainty” of the existence of a “presumed infringement”, either by received notice from the rights’ owner or its representative, or by a resolution issued by a competent authority, ordaining the take down. In both cases the provider shall take the necessary measures to prevent that the same content or material may be uploaded again.
The amendment only requires ISPs to remove infringing content upon receiving notice of infringement from the rights holder or its representative. There is no requirement for ISPs to remove infringing content upon actual knowledge of copyright infringement or when they become aware of facts or circumstances from which infringement is apparent.
The article also lists other requisites for providers such as: having a policy that comprises the closing or cancelation of the accounts of repeat infringers, the use of and not tampering with technological protection measures and, finally, that they do not receive financial compensation derived from the infringing conduct “when the provider has the right and capacity to control the infringing conduct”.
Finally, Section III of Article 114 Octies, contains the details of a “notice and takedown” procedure. There is also a counter-claim system established therein. Only title holders of works protected by copyright, performances or neighboring rights, will be able to carry out the notice. The user whose content is removed, may then submit a counter-notice to defend the allegedly infringing content, which will force the online service provider to restore the content unless legal action is taken by the copyright holder within 15 days. To ensure this “notice and takedown” system operates correctly, the reform foresees severe fines for making a false statement in a notice or counter-notice, as well as against any online services provider who fails to quickly remove a content after receipt of a notice.
Another aspect is the fact that legal remedies and safe harbors provided by article 20.88 only limit liability for monetary relief and not all ISP liability. USMCA only provides safe harbors to ISPs for monetary relief and not injunctive relief or administrative sanctions imposed on infringers. This distinction was not cleared by the wording of the amendment.
There are many concerns among civil rights’ groups, academics and attorneys as to the possible effects of the amendments regarding free speech, net neutrality, as well as regarding the appropriate enforcement by the copyright authority, for not only there are ambiguous expressions in a poorly drafted text, but also, there is no clarity as to how the procedure could be implemented administratively speaking, for the copyright authority does not have the required structure and qualified personnel to perform this new task appropriately and civil procedures in Mexico can take a long time to be resolved.
It must be remarked that, at least, the amendments did not include a monitoring or filtering obligation for providers, which was a huge concern. Fortunately, this aspect is clearly stated in Section IV of Article 114 Octies.