Thursday, June 04, 2009

An Argentine copyright case with political implications and little more

After more than a month away from this version of cyberspace, some strange IP news brings me back to drink legal mate (and leave my marking for a while).
A couple of days ago an Argentine judge ordered the ruling party, the Peronism that uses the name Partido Justicialista (well, a coalition called Frente para la Victoria –Front for Victory- purporting to be the party), to stop using the most popular version of the party’s anthem due to a copyright infringement lawsuit brought by the state of Hugo Del Carril, the author and interpreter of the most famous version of the song and one of the undisputed notables of the Peronist Party. Argentina has a quite developed copyright law and it is member of the Berne Convention, the Rome Convention and WTO’s TRIPS, all of which establish that authors and performers have exclusive rights to reproduction, distribution to the public and authorization of public performance of their work. These rights of interpreters on recordings can be found in art 56 of the Law Number 11723 (as amended) of Argentina. Until here there is no much of a news more than the political issue created by the son of Hugo Del Carril by denying the use of the song to the group that is currently in the Argentine government because he alleges they are not really peronists, which according to him (and to the judge that concurred) would satisfy the reasons for denial of authorization instituted in the law. However, although not surprising for those versed in Argentine politics and the way that “rule of law” is interpreted there, things started to get strange when the country’s Minister of Justice, Anibal Fernandez, said that “they” would keep using the song as much as they wanted, which was later put into practice in a political meeting of the Frente para la Victoria that was attended by the husband of the current president and candidate to the House of Representatives of the Argentine Congress, Nestor Krichner…beyond the political issue represented by the fact that the Minister of Justice of a country is saying that will ignore a judicial ruling and that the judicial ruling is directed to a political party not to the government (it seems that in some point those in the government of Argentina cannot see the difference) there are several legal issues that deserve a more detailed analysis.
That the state of the singer has the right to not authorize the public performance of the song is beyond question, as established by relevant law and explained by the judge that expressly ruled against continuing its use, making the use of it by the Frente por la Victoria both copyright infringement and contempt to court. Following Argentine obligations under international law, such copyright infringement incurs both civil liability and criminal responsibility, as per articles 71, 72 and, especially, 73 of the mentioned Law 11723 of the Legal Regime of Intellectual Property of Argentina. The civil liability would be incurred by the meeting organizers, the Frente para la Victoria and the one that actually played the song, and the criminal responsibility would lie with the person that played the song because in Argentina criminal responsibility must lie with a physical person. But the problem does not stop there because art 209 of the Argentine Criminal Code makes a crime to “incite to commit a crime” and art 213 of the same code criminalizes the act of being apologetic of the commission of a crime or a criminal, making the Minister’s declaration a clear crime. Furthermore, art 248 of the Argentine Criminal Code creates the crime of not fulfilling the duties of a public officer, which includes issuing orders contrary to the law, as the one in question. Accordingly, when Anibal Fernandez said that “they” would keep using the song in dispute and, therefore, disobeyed a court order, he committed an array of crimes within and outside of the realm of intellectual property law.
Finally, it is an accepted principle of international law that unilateral declaration of public officials can, in some particular circumstances, be binding for countries and affect their status within certain international legal regimes, as established in the case of Denmark v Norway, PICJ (1933) the Minister of Justice of Argentina saying that authors and interpreters rights can be ignored and therefore denouncing several international conventions, the TRIPS agreement and Argentina’s obligations under the WTO system?…

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