Título II. Derechos de autor

The author is the natural person who carries out the intellectual creation. Only natural persons may be authors of a work; however, the State, public-law entities and legal persons may be holders of the rights provided in this Law for authors, in the cases mentioned therein.

The natural person whose name or known pseudonym is indicated therein, or is announced in the declamation, execution, representation, interpretation or any other form of public dissemination of said work, shall be considered the author of a work, absent evidence to the contrary.

Where the work is disclosed in anonymous form or under an unknown pseudonym, the exercise of the author's rights shall correspond to the publisher until such time as the author reveals his identity.

The rights in a work created in collaboration belong to all the co-authors, proindiviso, unless there is an agreement to the contrary or the ownership of each of them is proven, in which case each collaborator is the owner of the rights in the part of which he is the author.

To disclose and modify a work created in collaboration, the consent of all the authors is required; in the absence of agreement, the competent judge shall decide. Once the work has been disclosed, no co-author may unjustifiably refuse his consent to its exploitation in the form in which it was disclosed.

In an audiovisual work, the author of the work is its director. However, unless otherwise agreed, it is presumed that the economic rights in the work have been assigned to the producer in the manner established by Article 27 of this law.

In the case of collective works, it is presumed, unless otherwise agreed, that the authors have assigned in unlimited and exclusive form the ownership of the economic rights to the natural or legal person who publishes them under its own name, who is likewise empowered to exercise the moral rights in the work.

In works created for a natural or legal person, by commission, in performance of an employment relationship or in the exercise of a public function, the original holder of the moral and economic rights is the natural person who has created the work or has participated in its creation.

However, it is presumed, unless otherwise agreed, that the economic rights in the work have been assigned in favor of the person commissioning it or the employer, as applicable, on the terms and with the limits provided in Article 75 of this Law, which also implies authorization for the assignee to disclose it and to exercise the defense of the moral rights necessary for the exploitation of the work, provided that it does not cause prejudice to the integrity thereof or to the paternity of the author. In case of conflict between the provisions of this Law and those of the Labor Code, the former shall prevail when the conflict arises from or relates to copyright.

In computer programs it is presumed, unless otherwise agreed, that the author or authors of the work have assigned their economic rights to the producer, in an unlimited and exclusive manner, which implies authorization to disclose the work and to exercise the defense of the moral rights to the extent necessary for the exploitation of the computer program.

It is presumed, unless there is evidence to the contrary, that the producer of the computer program is the natural or legal person indicated as such therein.

When a worker who was not required by his employment contract to engage in an activity whose purpose is to produce computer programs produces a computer program related to the field of activities of his employer, or through the use of data or means to which he had access by reason of his employment, he shall immediately communicate this fact to his employer in writing and, at the employer's request, shall provide him in writing with the necessary information on the usefulness of his creation.

If within a time limit of one month counted from the date on which the worker had delivered such communication, or from the date on which the employer had obtained knowledge by any other means of the creation of the computer program, applying the time limit that expires first, the employer notifies the worker in writing of his interest in obtaining the economic rights in the work, the employer shall have a preferential right to acquire them.

In the event that the employer notifies his interest in the work, the worker shall have the right to equitable remuneration, or to a participation in the profits, royalties or income resulting from the commercialization of the computer program, as established contractually between the parties. In the absence of agreement between the parties, the remuneration shall be fixed by a judge, under the procedure established by the Labor Code.

In derivative works, the author is the person who, with the authorization of the holder, makes the adaptation, translation or transformation of the original work. In the publication of the derivative work, the name or pseudonym of the original author must appear.

When the original work is in the public domain, the holder of the derivative work enjoys all the rights that this Law grants over their version, but may not oppose others using the same original work to produce different versions.

The right to publish private correspondence belongs to its author, who in order to do so requires the express consent of the addressee, unless the publication does not affect the honor or interest of the latter. The addressee may make use of the letters or correspondence received in defense of their person or their interests.

Expressions of folklore belong to the cultural heritage of the country and shall be subject to specific legislation.

All productions in the literary, scientific and artistic field are considered works, whatever the mode or form of expression, provided that they constitute an original intellectual creation. In particular, the following:

a)Those expressed in writing, by means of letters, signs or conventional marks, including computer programs;

b)Lectures, addresses, sermons and other works expressed orally;

c)Musical compositions, with or without lyrics;

d)Dramatic and dramatic-musical works;

e)Choreographic works and pantomimes;

f)Audiovisual works;

g)Fine arts works such as drawings, paintings, sculptures, engravings and lithographs.

h)Architectural works;

i)Photographic works and those expressed by a procedure analogous to photography;

j)Works of applied art;

k)Illustrations, maps, croquis, plans, sketches and plastic works relating to geography, topography, architecture or science.

The foregoing enumeration is illustrative and not exhaustive, and therefore both known works and those that are created in the future enjoy the protection of this law.

Also considered works, without prejudice to the copyright in the original works, as applicable:

a)Translations, adaptations, musical arrangements and other transformations of a work;

b)Anthologies, dictionaries, compilations, databases and the like, when the selection or arrangement of the materials constitutes an original creation.

The title of a work that is protected under the terms of this law may not be used by a third party, unless due to its generic or descriptive character in relation to the content thereof, it constitutes a necessary designation. In the case of works concerning traditions or legends, this protection may not be invoked.

No person may use the title of another's work as a means intended to cause confusion among the public or to unduly take advantage of the literary or commercial success or reputation of its author.

Copyright comprises moral and economic rights, which protect the paternity, integrity and exploitation of the work.

The author's moral right is inalienable, imprescriptible and unwaivable. It comprises the powers to:

a)To claim at all times paternity of the work, in particular, to require mention of his name or pseudonym, as author of the work, in all reproductions and uses thereof;

b)To oppose any deformation, mutilation or other modification of the work, without his prior and express consent, or any modification or use of the work that disparages it or causes prejudice to his honor or reputation as author;

c)To keep his work unpublished or anonymous or, to provide by will that it remain so after his death. Postponement of disclosure of the work may only be made for up to seventy-five years after his death.

d)Repealed

e)Repealed

f)Repealed

Upon the death of the author, only the exercise of the rights referred to in subsections a) and b) of Article 19 of this Law is transmitted to his heirs, without time limit. In the absence of heirs, the exercise of those rights corresponds to the State.

The pecuniary or patrimonial right confers upon the copyright holder the powers to use the work directly and personally, to assign in whole or in part their rights therein, and to authorize or prohibit its use and exploitation by third parties.

Only copyright holders and those expressly authorized by them shall have the right to use the work in any manner, form or by means of any process and consequently they shall be entitled to authorize or prohibit any of the following acts:

a)Reproduction and total or partial fixation of the work in any type of material support, format or medium, temporary or permanent, by means of any procedure known or to be known;

b)Translation into any language, tongue or dialect;

c)Adaptation, arrangement or transformation;

d)Communication to the public, directly or indirectly, by any procedure or means, known or to be known, in particular the following acts:

1)Declamation, representation or performance;

2)Public projection or exhibition;

3)Broadcasting;

4)Transmission by wire, cable, fiber optics, or other similar procedure;

5)Retransmission by any of the means cited in numerals 3 and 4 above;

6)Dissemination of signs, words, sounds and/or images by means of loudspeakers, telephone, similar electronic devices, distribution by cable or any other means;

7)Public access to databases and computers by means of telecommunications; and

8)Public access to their works so that members of the public may have access to them from the place and at the time they choose;

e)Distribution to the public of the original or copies of their work, whether by means of sale, lease, lending or any other form. When distribution duly authorized by the rightholder is carried out by means of sale, the right to control successive sales shall be extinguished only when the first sale of the original or copies of the work has taken place within Guatemalan territory, except for the case established in Article 38 of this Law and any other legal exceptions. The rights of reproduction, lease, lending, modification, adaptation, arrangement, transformation, translation, importation and communication to the public shall not be extinguished by authorized distribution by means of sale.

f)Importation and exportation of copies of their works or of phonograms lawfully manufactured and importation and exportation of copies manufactured without their consent.

The various forms of use referred to in Article 21 of this law are independent of each other. Authorization for a specific use is not applicable to others.

The assignment of exploitation rights over his works does not prevent the author from publishing them, gathered in a selected or complete collection.

Copyright is not subject to seizure. Copies or reproductions of a published work may be seized, as well as the economic proceeds received from the exploitation of the economic rights and the credits arising from those rights.

Copyright protects exclusively the form through which the author's ideas are described, explained, illustrated or incorporated in the works. The ideas contained in literary and artistic works, the ideological or technical content of scientific works, or their industrial or commercial exploitation are not subject to protection.

Discoveries, knowledge and teachings, as well as research methods, are not protected by copyright.

Works protected by copyright that appear in periodic publications or broadcasts do not lose, by reason of that fact, their legal protection. The protection of the law shall not apply to the informational content of current journalistic news published by any medium of dissemination, but shall apply to the text and to the graphic representations thereof.

The natural or legal person who appears indicated as such therein is presumed to be the producer of an audiovisual work, unless evidence to the contrary.

By the contract for the production of an audiovisual work, the economic rights derived therefrom are presumed assigned to the producer in an unlimited and exclusive manner. Likewise, it is presumed that the producer has been authorized to decide on the disclosure or non-disclosure of the work, to adapt it in accordance with the different formats for its fixation and disclosure, and to exercise the defense of the moral rights in the audiovisual work.

The producer of the audiovisual work, when exhibiting it to the public, must mention, in addition to their name and that of the director, that of the author of the script or plot, that of the author of the work that inspired the audiovisual work, and that of the author or authors of the musical compositions incorporated in the audiovisual work.

If one of the authors, for any reason, is unable to complete his contribution, he may not oppose the use of the part already completed nor the designation of a third party to complete the work. In such case, he shall have the status of author with respect to the part he completed and shall enjoy the rights deriving therefrom.

Computer programs are protected on the same terms as literary works. Such protection extends to both operating programs and application programs, whether in source-code or object-code form and whatever their form or mode of expression may be. The technical documentation and user manuals of a program enjoy the same protection provided for computer programs.

The rental right included in subparagraph e) of Article 21 of this law is not applicable to rentals whose essential object is not the computer program itself.

The placing on the market of the original or authorized copies of a computer program, with the consent of the rights holder, does not extinguish the right to authorize the rental or loan of such copies, nor any others established in Article 21 of this law.

The reproduction of a computer program, even for personal use, shall require the authorization of the holder of the rights, with the exception of the copy made for the sole purpose of replacing the legitimately acquired copy, when the latter can no longer be used due to damage or loss. However, both copies may not be used simultaneously.

The introduction of a program into the internal memory of the computer that serves solely for purposes of the use of the program by the user is lawful. The exploitation of the program by several persons through the installation of networks, workstations or other analogous procedure, without the consent of the holder of the rights, is not lawful.

The authors or holders of a computer program may authorize the modifications necessary for the correct utilization of the programs. The adaptation of a program made by the user, for its exclusive use, when the modification is necessary for the utilization of that program or for a better utilization thereof, does not constitute a modification.

Compilations or databases, whether machine-readable or in any other form, are considered collections of works for purposes of their protection in accordance with this law. This protection shall not extend to the data or material contained in the compilations nor prejudice any existing copyright therein.

The alienation of the material object in which a work of art is incorporated does not result, in favor of the acquirer, in the assignment of the author's exploitation rights. The acquirer may, however, publicly exhibit the work, whether gratuitously or for consideration, unless otherwise agreed.

The author of a work of art has the right to require the owner of the work to grant access to it, provided that such access is necessary for the exercise of the author's moral or patrimonial rights and does not thereby affect the reputation or honor of the owner.

In case of resale of original works of art, effected at public auction or through a professional dealer in works of art, the author or, as the case may be, his heirs or legatees, enjoy the right to receive from the seller ten percent (10%) of the sale price. This right shall be collected and distributed by a collective management entity, if any, unless the parties agree on another manner of doing so.

This provision is also applicable to the sale made of original manuscripts of authors or composers.

The portrait or bust of a person may not be used for profit-making purposes without the consent of the person himself and, upon his death, with that of his heirs. However, publication of the portrait is free when it relates to scientific, didactic or cultural purposes in general, or to facts or events of public interest or that have taken place in public.

Persons who pose for paintings or artistic or advertising photographs shall have the pecuniary rights provided by the respective contract.

The term musical works comprises musical compositions, with or without lyrics, and dramatic-musical works.

Unless the parties specifically agree otherwise, in dramatic-musical works the commercial exploitation, separately from the work to which they belong, is permitted of those excerpts that do not comprise entire acts.

The author of a dramatico-musical work has, in addition to the rights established in Articles 19 and 21 of this Law, the right to supervise the direction and the casting of the principal roles in his work.

Unless otherwise agreed, authorization for the use of articles in newspapers, magazines or other mass media, granted by an author without a dependency relationship with the journalistic enterprise, confers upon the editor or owner of the publication only the right to insert it one time, without prejudice to the other patrimonial rights of the author or of the holder thereof.

In the case of an author engaged under an employment relationship, such author may not reserve for himself the right of reproduction of the journalistic article, which shall be presumed assigned to the enterprise or mass media, unless otherwise agreed. However, the author shall retain his rights with respect to the independent edition of his productions in collection form.

The provisions of this article apply in a similar manner to drawings, comic strips, graphics, caricatures, photographs and other works susceptible of being published in newspapers, magazines or other mass media.

Unless otherwise provided in this law, economic rights are protected throughout the life of the author and for seventy-five years after his death. Where works are created by two or more authors, the time limit shall begin to be counted after the death of the last co-author.

Copyright may be transferred by act inter vivos and by cause of death; when by cause of death, it shall be effected in accordance with the provisions of the Civil Code.

Where works by foreign authors published for the first time outside the territory of the Republic of Guatemala are concerned, the time limit of protection shall not exceed that recognized by the law of the country where the work was published; however, if that law were to grant greater protection than that granted by this law, the provisions of the latter shall govern.

In the case of computer programs and collective works, the term of protection shall be seventy-five years counted from the first publication or, failing that, from the creation of the work.

“First publication” means the production of copies made available to the public, available in such quantity as may satisfy their reasonable needs, taking into account the nature of the work.

Where the work is anonymous or pseudonymous, the term of protection shall begin to run from first publication or, in the absence thereof, from its creation. If the identity of the author is legally proven, the term shall be calculated in the manner indicated in Article 43 of this Law.

Where works formed by several volumes are concerned, which have not been published in the same year, or serials or periodic instalments, the time limit shall begin to run with respect to each volume, serial or instalment, from the respective publication.

In the case of audiovisual works, the term shall be counted from the first authorized publication of the work, provided that such publication occurs within the seventy-five (75) years following its making. Otherwise, the term shall be counted from its making.

The time limits of protection provided for in this chapter shall be computed from January of the next year following that in which the event giving rise to them occurs. Upon expiry of the time limit of protection, the works shall pass into the public domain.

The State or its public entities, the municipalities, as well as the universities and other educational establishments of the country, shall enjoy the protection established by law, but, when they are declared heirs of the copyright and do not make use thereof within the time limit of five years counted from the respective declaration, the work shall pass into the public domain.