Título IX. Observancia efectiva de los derechos ⟦53⟧

The tariffs shall be approved by the General Assembly upon proposal of the Board of Directors, and shall be published in the official gazette, becoming effective from the day following their publication. Likewise, the annual financial statements approved by the General Assembly of the collective management society shall be published in the official gazette and in another newspaper of major circulation.

In case of non-compliance with the legal and/or regulatory obligations on the part of collective management societies and/or their officers and administrators, the Intellectual Property Registry, once the contravention has been established, shall by means of a reasoned decision impose the corresponding sanction according to the seriousness thereof.

Sanctions may consist of:

a)Private admonition, addressed to the Board of Directors;

b)Public admonition;

c)Fine;

d)Temporary suspension of the authorization as a collective management society; and

e)Definitive cancellation of the authorization as a collective management society.

In the cases provided for in subparagraphs d) and e), the Intellectual Property Registry may designate an intervening board for the period for which the suspension lasts or during the time taken by the liquidation proceedings of the collective management exercised by the entity.

In the case of temporary suspension, the administrators, officers or legal representatives of a collective management society may not enter into any contract nor carry out operations on its behalf, except those necessary for the preservation of the corporate assets. Contravention of this rule shall render them jointly and severally liable for the damage and losses caused to the collective management society or to third parties.

The regulation under this law shall elaborate the cases in which each sanction is applicable and matters relating to the intervening board, when its designation is appropriate.

The exercise of the criminal action against the persons responsible for the crimes and misdemeanors defined in matters of Copyright and Related Rights in the Criminal Code and other laws corresponds to the Public Prosecutor's Office. The holder or licensee of the infringed rights may provoke criminal prosecution by reporting the violation of such rights or adhere to that already initiated by the Public Prosecutor's Office, an entity that shall be obliged to act directly and immediately against the persons responsible. Any association or organization representative of any sector of production or of consumers may also instigate criminal prosecution.

The Public Prosecutor's Office, on its own initiative or at the request of the holder of the right or the aggrieved party, upon becoming aware of an unlawful act, within the applicable time limits under the provisions of the Code of Criminal Procedure, shall request the competent judge to authorize any of the precautionary measures established in this law or in said Code that are necessary to safeguard the rights recognized and protected by this law, and in the international treaties on the subject to which the Republic of Guatemala is a party, and that are being infringed, or when their violation is imminent. For this purpose, the Public Prosecutor's Office shall determine that the request for interim protective measures is appropriate when the circumstances of the case and the available evidence give rise to the assumption that the violation has occurred or that there is a risk that it will occur.

Once the request has been filed before the competent judge, said judge shall be obligated to order the interim protective measures on an urgent basis in accordance with the applicable procedural provisions, authorizing the Public Prosecutor's Office to proceed to their enforcement with the assistance of the necessary police authority.

The following interim protective measures may be ordered in the case of criminal proceedings:

a)The immediate cessation of the unlawful acts or illegal trade of the protected work;

b)The entry and search of public or private premises, open or closed, which shall be carried out in accordance with the provisions in that regard in the Code of Criminal Procedure, including the search and inspection of computer equipment or computers to establish the unlawful use or reproduction of computer programs in accordance with Article 32 of this Law;

c)The attachment of movable property and immovable property and, among others, of the bank accounts in the name of the companies or individual persons identified as possible principals or accomplices liable for the reported unlawful act and the attachment of the net proceeds of the income of the possible infringer;

d)The immediate seizure or forfeiture of the unlawfully made copies or exemplars of works or phonograms; or, of goods that unlawfully incorporate works or phonograms; the materials and instruments used to produce, transport, store, distribute, offer them for sale, lease or communicate them to the public in any manner and documentary evidence relating to the crime. It is not necessary to individually identify the articles subject to forfeiture pursuant to the court order, if they belong to the general categories specified in the order. The confiscated or seized goods shall remain on deposit with the Public Prosecutor's Office;

e)The suspension of customs clearance of unlawfully made copies or exemplars of works or phonograms, or the seizure of goods that unlawfully incorporate works or phonograms, that are to enter Guatemala, which shall remain in a deposit controlled by the customs authorities;

f)The order to review the accounting records of the individual or legal persons identified as allegedly liable for the unlawful act;

g)The seizure of the accounting records or of the computer equipment containing them, belonging to the individual or legal persons identified as allegedly liable for the unlawful act;

h)The temporary closure of the premises or business in which unlawful copies of works or phonograms or any infringing merchandise or materials and instruments used to produce them are found. This measure shall be maintained for the time limit necessary to secure the outcome of the proceedings and may not be lifted as long as there is a risk that the violation may be repeated or another violation of the rights established in this Law and in the treaties on copyright and related rights to which the Republic of Guatemala is a party; and

i)The interim protective or precautionary measures, auxiliary means or coercive measures which, according to the circumstances, appear most suitable to provisionally secure the cessation of the unlawful act, the protection of the rights recognized in this Law, or the preservation of the evidentiary material or evidence related to an actual or imminent violation.

The instruments and objects of the crime that have been subject to forfeiture or seizure shall be considered as evidence against the persons liable for the unlawful act.

If there is an agreement between the aggrieved party and the person or persons accused of the criminal offense and the former has been satisfactorily compensated for the damage caused and the losses produced by the commission of the crime have been paid, or duly guaranteed, the initiated legal procedure may be terminated at any stage of the proceedings.

In addition to the criminal sanctions provided for in the Penal Code, in criminal proceedings the judicial authorities shall also be empowered to:

a)Order the seizure of articles suspected of being pirated, materials and implements used in the commission of the crime of violation of copyright and related rights, assets traceable to the infringing activity and all documentary evidence relevant to the crime. It is not necessary to individually identify the articles subject to seizure as a result of such judicial order if they belong to the general categories specified in the order;

b)Order, among other measures:

1)The seizure of assets traceable to the infringing activity;

2)The seizure and destruction of all unlawfully copied goods, without compensation or remuneration of any nature to the accused in order to prevent the pirated goods from re-entering commercial channels; and

3)The seizure and destruction of materials and implements used in the creation of the infringing articles.

When the holder of a right protected by this law has probable cause to believe that an importation or exportation of products infringing their rights is being prepared, such holder may:

a)Request from the corresponding customs authorities the suspension of the importation or exportation in question, for a time limit of not more than ten working days; or

b)Request the competent judge to order the customs authorities to suspend the clearance of such importation or exportation.

Without prejudice to the foregoing, the customs authorities shall request border measures on its own initiative before the competent judicial authority, when they suspect that there is imported, exported or in-transit merchandise infringing a right protected by this law, without the need for a formal private criminal complaint by a private entity or by the holder of the right.

The holder of the right who requests the border measures referred to in Article 129 of this law shall provide to the customs authorities or to the competent judge sufficient evidence demonstrating that, prima facie, a violation exists, and shall provide sufficient information that may reasonably be expected to be in the possession of the holder so that the suspect goods can be readily recognized. The requirement to provide sufficient information shall not unreasonably discourage the use of these procedures. The provisions and guarantees relating to precautionary measures established for civil proceedings shall be applicable to the request filed.

Once the suspension of the importation or exportation of the goods considered infringing has been executed, the customs authority that issued it shall immediately notify it to the importer or exporter thereof and to the applicant for the measure.

After ten working days have elapsed, counted from the date of notification to the applicant, without having received an order from a competent judge to keep it in force, the customs authority shall lift the suspension on its own initiative and shall order the clearance of the retained goods. The public official who fails to timely lift the suspension shall incur liability.

Without prejudice to the obligation to protect confidential information, the authorities that ordered the border measure may give the person who filed the request unimpeded access to the retained goods or products so that they may inspect them and obtain additional evidence in support of its claim. The importer or exporter shall enjoy the same right. This activity shall be carried out in the presence of the corresponding authority and notice thereof shall be given to the opposing party. In any event, if the authority determines that the retained goods or products infringe a right protected by this law, it shall be empowered to provide the holder of the right with the names and addresses of the shipper, the importer and the consignee and the quantity of the articles in question.

For purposes of justifying the extension of the suspension of the clearance of the goods detained by the customs authorities, or to support an infringement action, the judge shall allow the right holder to inspect such goods. The same right shall correspond to the importer or exporter of the goods.

The competent judicial authority shall be empowered to require that the holder of a right who has initiated suspension proceedings furnish a reasonable equivalent sufficient guarantee or security to protect the defendant and the competent authorities and to prevent abuse. Such guarantee or security shall not be unreasonable so as to dissuade the use of such proceedings. Such guarantee may be an instrument issued by a financial services provider to hold the importer, exporter or owner of the imported or exported merchandise harmless from damage or losses resulting from the suspension of the release of the articles if the competent authorities determine that the article is not infringing.

In the cases indicated in the preceding paragraph, the judicial and administrative authorities that have ordered the suspension of the importation or exportation shall not be liable if they have acted in good faith.

When the competent authorities determine that the goods are pirated, they shall be destroyed in accordance with the corresponding judicial order, unless the right holder approves an alternative disposition. In no case may the competent authorities allow the exportation of pirated goods to allow them to be subjected to other customs procedures, except in exceptional circumstances.

When a fee for application or storage of the merchandise is set, in relation to border measures for the enforcement of an intellectual property right, the fee shall not be set at an unreasonable amount that deters the use of such measures.

Civil proceedings brought to enforce the rights recognized in this law shall be processed in accordance with the procedure for the oral trial established in Book Two, Title II, Chapters I and II of the Civil and Commercial Procedural Code.

Notwithstanding the provisions of this article and any other provision contained in this law giving rise to civil or commercial actions, interested parties may also use alternative methods of dispute resolution, such as conciliation and arbitration.

Whoever initiates or intends to initiate a civil action relating to copyright or related rights may request the competent judge to order guarantee measures and emergency provisions of immediate efficacy, in order to protect their rights, impede or prevent the commission of an infringement, avoid its consequences and obtain or preserve evidence. If the Judge considers it necessary, in the same decision decreeing the requested measures, the Judge may require the plaintiff, prior to their execution, to furnish a bond or other reasonable guarantee to protect the party affected by the measure and the authority itself and likewise to prevent abuse. Such guarantee shall not be so unreasonable as to dissuade the use of such procedure.

The judge shall order the provisions that prudently tend to protect the right of the plaintiff or petitioner, such as:

a)The immediate cessation of the infringement alleged by the right holder;

b)The seizure of the infringing products, including containers, packages, wrappings, labels, printed or advertising material, equipment, machinery and other materials resulting from the infringement or used to commit it and the means used to carry out the infringement;

c)The prohibition of the importation of the products, materials or means referred to in the preceding subsection;

d)The confiscation and transfer to judicial depositories of the products, materials or means referred to in subsection b);

e)The measures necessary to avoid the continuation or repetition of the infringement, including the destruction of the products, materials, equipment or means referred to in subsection b); and

f)The suspension or cancellation of the sanitary registrations or licenses or of another nature that are necessary for the entry, distribution, sale or marketing of the infringing products.

The judicial authorities shall require the claimant to provide the evidence that they may reasonably have available in order to have sufficient certainty that the right of the claimant is being infringed or that such infringement is imminent.

The judge shall order and execute the measures requested of him within a non-extendable time limit of two days. Where the measures are requested prior to the claim, the established time limit shall be counted from the presentation of the required bond or guarantee.

All precautionary orders shall be processed and executed without notification or intervention of the defendant party, but they shall be notified to the latter at the time of their execution or immediately thereafter. The tribunals shall take the necessary measures to ensure that the application for interim protective measures is kept confidential, in accordance with the provisions of literal (e) of Article 133 of this Law.

If the orders are issued before the action is commenced, they shall cease to have effect if whoever obtained them does not file the corresponding claim within a time limit of fifteen days, counted from the date on which the measures were executed.

When interim protective measures are requested with the claim or subsequent thereto, it shall not be necessary to furnish any guarantee.

Once an order or interim protective measure intended to secure the outcome of the proceedings with respect to the restorative claim in a civil action has been granted or conceded, the same may not be set aside by means of reasonable security or guarantee. Security or guarantee may only be granted to obtain the lifting of interim protective measures intended to secure or protect a damages claim in the strict sense.

ARTICLE 133 QUINQUIES.

Without prejudice to the civil liabilities arising from the violation of a copyright or related right, any person who performs any of the acts contained in this article shall be subject to the remedies, guarantees and interim protective measures established in this Title:

a)Circumvents or attempts to circumvent without authorization effective technological measures implemented by the author or holder of the right, performers, the producer of phonograms, in the exercise of their corresponding rights or for the purpose of restricting or controlling access to works, performances, phonograms or other protected materials; or

b)Manufactures, imports, distributes, offers to the public, provides, sells, offers for sale; or otherwise trades in devices, products or components; or offers to the public or provides services that:

1)Are promoted, advertised or marketed with the purpose of circumventing an effective technological measure;

2)Have only a limited commercially significant purpose or use other than circumventing an effective technological measure; or

3)Are designed, produced or performed principally with the purpose of enabling or facilitating the circumvention of an effective technological measure.

A library, an archive, an educational institution or a non-commercial, non-profit public broadcasting organization that demonstrates that it did not proceed with the intent to engage in a prohibited activity may not be ordered to pay civil liability for damage and losses.

The design, or the design and selection, of parts and components for consumer electronics, telecommunications or computing products need not respond to a specific technological measure if the product does not violate subparagraphs a) or b) above.

ARTICLE 133 SEXTIES. The following shall be considered lawful activities:

1)With respect to Article 133 quinquies subparagraph b), concerning effective technological measures that control access to a work, performance or phonogram, the activities described in subparagraphs a), b), c) and d) of this numeral are lawful, provided that they do not impair the lawful protection or the efficacy of the legal remedies against the circumvention of effective technological measures.

With respect to Article 133 quinquies subparagraph b), concerning effective technological measures that protect any of the exclusive copyright or related rights in a work, performance or phonogram, the activity described in subparagraph a) of this numeral is lawful, provided that it does not impair the lawful protection or the efficacy of the legal remedies against the circumvention of effective technological measures:

a)Non-infringing reverse engineering activities, with respect to a lawfully obtained copy of a computer program, carried out in good faith on particular elements of that computer program that were not available to the person engaged in reverse engineering, for the sole purpose of achieving interoperability of an independently created computer program with other programs;

b)Non-infringing good-faith activities carried out by a duly qualified researcher who has lawfully obtained a copy, an unfixed performance, or the exhibition of a work, performance or phonogram, and who made a good-faith effort to obtain authorization for such activities, to the extent necessary to identify and analyze flaws and vulnerabilities of encryption and decryption technologies;

c)The inclusion of a component or part with the sole purpose of preventing access by minors to inappropriate online content, in a technology, product, service or device that is not prohibited under the measures established in Article 133 quinquies subparagraph b);

d)Non-infringing good-faith activities authorized by the owner of a computer, computer system or computer network, for the sole purpose of testing, investigating or correcting the security of that computer, computer system or computer network.

2)With respect to Article 133 quinquies subparagraph a), in addition to the activities described in numeral 1) subparagraphs a), b), c) and d), the following activities are lawful, provided that they do not undermine the lawful protection or the efficacy of the legal remedies against the circumvention of effective technological measures:

a)Access by a non-profit library, archive or educational institution to a work, performance or phonogram not otherwise available, for the sole purpose of making an acquisition decision;

b)Non-infringing activities carried out solely to identify and disable the ability to collect or disseminate, without disclosure, personally identifying information reflecting the online activities of a natural person, in a manner that has no other effect on a person's ability to access a work; and

c)Non-infringing uses of a work, performance or phonogram in a particular class of works, performances or phonograms when a legislative or administrative proceeding demonstrates, by substantial evidence, an actual or likely adverse impact on those non-infringing uses. Every exception enacted under this provision shall be reviewed at least every four years, and shall be revoked unless it is demonstrated in such review, by substantial evidence, that such impact continues to exist for the particular non-infringing use.

3)In addition to the activities described in numerals 1 and 2 of this article, it is also lawful for legally authorized government employees, officials or contractors, for law enforcement purposes, to carry out intelligence, national defense, security or similar governmental activities in connection with the circumvention of effective technological protection measures.

Without prejudice to the liability resulting from the violation of a copyright or related right, any person who performs, without authorization and with knowledge or having reasonable grounds to know that inducing it, permitting it, would facilitate or conceal a violation of a copyright or related right, shall be civilly liable and shall be subject to the remedies, guarantees and interim protective measures established in this TITLE, when:

a)Removes or alters any rights management information;

b)Distributes or imports for distribution, rights management information, knowing that it has been removed or altered without authorization; or

c)Distributes, imports for distribution, transmits, communicates or makes available to the public copies of works, interpretations or executions or phonograms, knowing that the rights management information has been removed or altered without authorization.

The foregoing shall not apply to legally authorized activities, carried out by employees, public officials or government contractors, for law enforcement, as well as the conduct of intelligence, national defense, security or other similar governmental purposes.

A library, an archive, educational institution and non-commercial, non-profit public broadcasting body that demonstrates that they did not proceed with the intent to engage in a prohibited activity may not be ordered to pay civil liabilities for damage and losses.

Rights management information shall be understood as, when what is described in the following paragraphs is attached to a copy of the work, interpretation or execution or phonogram, or appears in connection with the communication or making available to the public of a work, interpretation or execution, or phonogram:

1)Information that identifies a work, interpretation or execution, or phonogram, the author of the work, the interpreter or performer of the interpretation or execution or the producer of the phonogram or any other holder of a right protected in the work, interpretation or execution, or phonogram;

2)Information on the terms and conditions of use of the work, interpretation or execution, or phonogram; or

3)Any number or code representing such information.

The authority may require that the holder of any right in the work, interpretation or execution, or phonogram provide rights management information.

Without prejudice to the liability resulting from the violation of a copyright or related right, any person who engages in any of the following activities shall be civilly liable and shall be subject to the remedies, guarantees and interim protective measures established in this Title:

a)Manufactures, assembles, modifies, imports, exports, sells, leases or in any way distributes a tangible or intangible device or system, knowing or having reason to know that the device or system primarily serves or assists in decoding an encrypted satellite signal carrying a program without the authorization of the lawful distributor of such signal; or

b)Deliberately receives and distributes a signal carrying a program that originated as an encrypted satellite signal, knowing that it was decoded without the authorization of the lawful distributor of the signal.

Any person injured by the activities described in this article may bring a civil action, including persons having rights to the encrypted programming signal or its content.

Civil actions arising from the rights established in this law shall expire within a time limit of five years, counted from knowledge of the violation of the right or rights concerned.

The criminal action may be exercised jointly with or independently of the civil action and shall expire in accordance with the rules established in criminal law.

The judgment upholding any of the civil actions provided for in this Law, in addition to deciding on the merits of the case, shall, as applicable:

a)Order that the infringing goods be seized without any compensation, to be destroyed as objects of unlawful trade or, as applicable, to prevent their entry into the channels of trade after customs clearance, or to prevent their export;

b)Notwithstanding subparagraph (a) above, with the authorization of the holder of the affected right, the judge may order, if deemed appropriate, that the goods be donated to private or public nonprofit entities, for their exclusive use in works or activities of social welfare, with a written record of the donation to be kept;

c)Order the forfeiture of the related materials and implements;

d)Provide that the materials and implements used in the production of the infringing goods be promptly destroyed or, in exceptional circumstances, without compensation of any kind, be removed from the channels of commerce and be donated by the judge to private or public nonprofit entities for their exclusive use in works or activities of social welfare without compensation of any kind to their owner, with a written record of the donation to be kept. In considering requests for such destruction, a judge may take into account, inter alia, the seriousness of the infringement as well as the rights of third parties holding ownership, possession, or contractual or secured interests;

e)Prohibit the infringing goods from entering the channels of commerce; and

f)Order the termination of all infringing acts and compliance with the steps necessary to prevent the consequences of such acts and their repetition, as well as restitution of damages.

. The judicial authorities shall be empowered to order the infringer to pay to the right holder:

a)Adequate compensation for the harm suffered by the right holder as a result of the infringement; and

b)The profits of the infringer attributable to the infringement and which have not been included in the calculation of the amount of damages referred to in the preceding subparagraph.

In the determination of damages for infringement of intellectual property rights, the judicial authorities shall consider, among others, the value of the goods or service that is the subject of the infringement based on the suggested retail sale price or other legitimate measure of value submitted by the right holder.

As an alternative to the preceding paragraph, the holder of the infringed right may opt for the determination of damages at ten times the commercial value that the seized, attached or retained infringing goods would have had if they had been legal products. Such compensation shall be fixed by the competent judicial authority at the domicile of the accused in an amount sufficient to compensate the right holder for the harm caused and to deter future infringements.

In civil, administrative and criminal proceedings concerning copyright and related rights it shall be presumed that:

a)The person whose name is indicated as author, producer, interpreter or performer, or publisher of a work, interpretation or performance, or phonogram, in the usual manner, shall, in the absence of evidence to the contrary, be presumed to be the holder of the right designated in such work, interpretation or performance, or phonogram; and

b)In the absence of evidence to the contrary, it shall be presumed that copyright or a related right subsists in such subject matter.

ARTICLE 134 sexties. Within any civil or commercial proceedings, the competent judicial authorities may require or order the infringer to provide to the right holder all information that the infringer possesses concerning any person involved in any aspect of the violation and concerning the means of production or channels of distribution for the infringing goods or services, including the identification of third parties participating in their production and distribution and their channels of distribution.

The judicial authorities shall impose the sanctions when the infringer fails to comply with the orders issued by a judge, without prejudice to the criminal liability incurred.