News

New Law of Intellectual Property Protection for Indigenous Communities

The Federal Law for the Protection of Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities (LFPPPCIA, for its acronym in Spanish) has been recently approved in Mexico. This law shall which entered into force on January 18 after its publication in in the Official Journal of the Federation (still pending) and aims to recognize and guarantee the protection and development of the cultural heritage and collective intellectual property of Indigenous and Afro-Mexican peoples and communities.

Generally speaking, this new law provides for: a) the collective intellectual property of indigenous peoples and communities; b) the creation of the Cultural Heritage Protection System of Indigenous and Afro-Mexican Peoples and Communities; c) the penalties for the undue appropriation by third parties of the collective intellectual property from these communities; and d) the creation of the National Registry of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities.

The recognition of a collective intellectual property on heritage, knowledge, and cultural expressions from Mexican indigenous communities allows them to decide which of these expressions will not be accessible for use and exploitation by third parties. Likewise, clear procedures are established for the defense of these rights always respecting the regulatory systems of indigenous communities. With the foregoing, any act, contract, or agreement entered into by a member of an indigenous community that, on an individual basis, had agreed with third parties for the use and exploitation of elements from the cultural heritage of indigenous peoples is rendered void.

This new law in addition contemplates the minimum requirements that authorization contracts of third parties must comply with and expressly prohibits the definitive transfer of the use, exploitation, or marketing of the cultural heritage elements from indigenous peoples and communities. These authorizations may be unilaterally revoked by indigenous communities whenever these are breached.

Likewise, these authorization contracts must be entered into before the Cultural Heritage Protection System of Indigenous and Afro-Mexican Peoples and Communities and the National Institute of Indigenous Peoples, who shall verify and ensure that the authorization be granted with the free and informed consent from the indigenous communities.

In addition to the foregoing, the Cultural Heritage Protection System of Indigenous and Afro-Mexican Peoples and Communities shall ensure the compliance of the LFPPPCIA’s object and purposes, always respecting the communities’ self-determination and autonomy, particularly the collaboration with Indigenous and Afro-Mexican communities in order for the compensation for the use of collective intellectual property to be fair, equitable, and timely. It also aims to identify and inform indigenous peoples and communities on the unauthorized and non-consensual use of cultural heritage elements.

Likewise, the National Registry of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities must be created, and which shall be made up of the voluntary documentary contribution that indigenous peoples and communities make, as well as Mexican authorities and, in general, any person that has relevant information on the cultural heritage elements from said peoples and communities. All documents included in this Registry shall have the value of a public document in any criminal or administrative proceeding.

Having established these safeguards, the LFPPPCIA establishes the mediation, claim, or denunciation, which may result in administrative penalties, as a mechanism to solve the disputes on the subject matter. These actions shall be heard before the National Institute of Copyright (INDAutor).

Anyone can make the National Institute of Indigenous Peoples aware of the existence of a potential breach on the cultural heritage of indigenous peoples and said Institute shall, upon an investigation of the events, proceed with the corresponding claim or denunciation ex-officio. In case the action is proceeded by an indigenous community, the examination of the claim shall apply.

Penalties for infringement of collective intellectual property rights of Indigenous and Afro-Mexican communities range from 50 to 50,000 Units of Measure and Update (UMAs, for their acronym in Spanish) (from approximately $48,000.00 to $4,800,000.00 Mexican pesos). The following are considered infringing behaviors:

Reproducing, copying or imitating, to the extent of creating confusion, of cultural heritage elements from peoples and communities without the authorization from the holder or holders of the rights;

The undue appropriation or exploitation by third parties, without authorization and for their own benefit, of the cultural heritage of Indigenous and Afro-Mexican peoples and communities;

Not complying with the terms of the granted authorization for use, exploitation, or marketing of cultural heritage elements of peoples and communities;

Authorizing the use, exploitation, marketing, or industrialization of cultural heritage elements to third parties, without having been appointed therefor by any Indigenous or Afro-Mexican peoples or community holder of an expression;

Being held as the owner of any collective right on cultural heritage elements of Indigenous and Afro-Mexican peoples and communities, without having the quality and representation thereof; and

Making cultural heritage elements of Indigenous and Afro-Mexican peoples and communities available to the public by means of any electronic medium known or to be known, without their consent.

Finally, the law contemplates two offenses: a) undue use and exploitation; and b) undue appropriation.

The undue use and exploitation relate to the reproduction, copy, imitation, distribution, utilization, sale, marketing, or diffusion, for profit, of any cultural heritage expression of indigenous communities. The penalties for this offense range from 2 to 10 years in prison in addition to a fine that can go up to 50,000 UMAs (approximately $4,800,000.00 Mexican pesos).

Undue appropriation can be committed by anyone that is being held as the owner, author, creator, or discoverer of any of the cultural heritage elements of Indigenous and Afro-Mexican peoples and communities. This offense is configured even if it is alleged that the creation or authorship was inspired by the cultural expressions of said peoples if a high similarity is maintained and if the creation was made without consent. The penalties for this offense range from 2 to 8 years in prison in addition to a fine that can reach up to 15,000 UMAs (approximately $1,450,000.00 Mexican pesos).

With the entry into force of LFPPPCIA, a new era in the protection of intangible assets from Mexican indigenous communities starts, by creating the protection and surveillance mechanisms for their defense, but also by implementing processes for third parties to be able to obtain authorizations for use of these intellectual property assets, by making the respect and development of cultural heritage and the recognition of the diversity of its elements prevail.

If you have an inquiry, do not hesitate in approaching our experts at ClarkeModet to solve it. We are here to support you info@clarkemodet.com.mx