Luis R. Pellerano is a Partner with the Dominican Republic law firm of Pellerano & Herrera. He regularly represents foreign investors in transactions in the Dominican Republic and throughout the Caribbean and Latin America.
Article 8 of the Dominican Republic's Constitution establishes as a basic human right the recognition and protection of ownership rights over scientific, artistic, and literary works. Toward that end, a Dominican statute has ensured copyright protection in the country for quite some time. Recently, however, in an effort to adopt appropriate tools to fight piracy and to conform to the Agreement on Trade Related Aspects of Intellectual Property Rights, the Dominican Republic passed a new Copyright Law.
The Dominican Republic's new copyright statute grants copyright protection to any original intellectual creation, whether literary, artistic, or scientific in its literary or artistic form, whatever its mode or form of expression may be, and regardless of the merit or value of the work or of its purpose or destination. Protected works include:
- written works such as books and magazines;
- oral works such as conferences, speeches, and sermons;
- choreographic and pantomime works;
- musical works with or without lyrics;
- audiovisual works, whatever their mode of fixation may be;
- artistic works such as drawings, paintings, architecture, sculpture, carvings, and lithographs;
- photographic works;
- works of applied art, which are those that may be of industrial use, such as furniture or jewelry;
- technical works such as illustrations, maps, plans, and plastic works related to geography, topography, architecture, or the sciences;
- computer programs and electronic databases, including technical documentation and users manuals; and
- compilations of information or materials.
The copyright law also protects independent creations deriving from original works. Thus, translations, adaptations, musical arrangements, and any other transformations of an original work are protected as independent works, provided they have been made with the authorization of the copyright owner of the respective original work. Collections of literary or artistic works such as encyclopedias and anthologies, as well as collective works such as periodicals and dictionaries, are protected as long as the selection or organization methods employed constitute an original creation.
Origin Of Protected Works
Copyright protection is afforded to works of Dominican or foreign origin. Any works created by authors having Dominican nationality or residence in the country enjoy copyright protection, as do works whose first publication has taken place in the country or that have been published here within 30 days after their first publication. The same protection is granted to works of nationals or residents of countries belonging to international treaties ratified by the Dominican Republic or that have been published for the first time or within the same 30 day term in any such country. In the absence of international treaties, copyright protection is granted to foreign works based on reciprocity.
Determination Of Authorship
Dominican law distinguishes between the original copyright holder, who is the author himself or herself, and derivative copyright holders, who have acquired the copyright pursuant to law or contract. Only physical persons may be authors. Entities or companies may exercise copyrights and related rights as derivative holders.
Ownership of works created under a contract are governed by the agreement, but in the absence of specific provisions, the work shall be presumed to belong to the author. With respect to works created by public servants, although the moral rights belong to the author, the economic rights belong to the public entity. This does not apply to works resulting from teaching activities, conferences or reports sponsored by public bodies, which belong to their authors.
As to collective works, these are produced by a group of authors at the initiative and under the coordination of a person or entity that publishes it, who is deemed the owner of the work, being entitled to exercise both economic and moral rights, discussed below.
The Dominican Republic, among a growing number of countries around the world, recognizes "moral rights," which entitles authors to exercise certain rights over their creations in addition to "economic rights." Moral rights are inherent to authors themselves, and belong to them all throughout their lifetime, even where they have transferred their economic rights. After their death, moral rights pass on to the legal heirs of the author, and in their absence to the State.
Under Dominican law, moral rights are inalienable, and may not be validly transferred nor waived by the author. They also are perpetual, meaning that they never cease to exist in time, and cannot expire, so that failure to exercise them for any given period does not affect their existence.
Moral rights provide that every author is entitled to:
(i) get credit for his or her work, even where the economic rights have been assigned;
(ii) object to any distortion, mutilation or any other amendment of the work, where such acts cause or may be capable of causing damages to the honor or professional reputation of the author, or a loss of literary, academic or scientific value of the work;
(iii) decide not to publish his or her work or to maintain it as anonymous during his or her lifetime and after his or her death; and
(iv) take the work out of circulation or suspend the use of the work, even where the author has authorized it to be used, provided the author pays an appropriate compensation for any damages that this may cause to third parties.
Heirs and the State only are entitled to exercise the first two categories of moral rights referred to above.
Duration Of Copyright
In general, the rights of a copyright owner last for the lifetime of the author, plus 50 years after the author's death. The surviving spouse, heirs, and assignees of the author thus may exercise economic rights for a period of up to 50 years after the author’s death. In the absence of heirs or assignees, the work becomes part of the public domain. Unless otherwise agreed, assignees shall be entitled to economic rights for a period of 25 years after the author’s death, while the author’s heirs shall be entitled to such rights for the remaining 25 years.
There are specific rules for certain works. For example,
- for compilations, dictionaries, encyclopedias, and other collective works, as well as computer programs, protection shall have a 50 year duration after the date of publication;
- for photographic works, copyright has a 50 year duration after the date of first publication or public exhibition, or the date of creation in the absence of publication;
- for audiovisual works, copyright has a 70 year duration after the date of first publication or presentation, or the date of creation in the absence of publication.
Limitations On Copyright
Like most copyright laws, the Dominican copyright law permits the use under certain circumstances of copyrighted works without authorization of the copyright holder. For example, it permits "fair use," which, among other things, allows passages of a work to be quoted without authorization up to a reasonable extent, provided the relevant details of the work and its author are included.
Moreover, the Dominican government may grant non-exclusive compulsory licenses for the translation and reproduction of foreign works, as established in international agreements such as the Universal Copyright Convention.
For many years after computer programs appeared in the market, courts and lawyers struggled to find a way to adequately protect them, arguing alternatively for patent law, copyright law, or a special system. Today, most countries have adopted the system of copyright protection for software; the Dominican Republic is no exception.
In the Dominican Republic, the author of a computer program is the person or persons that develop it. However, unless otherwise agreed, the author is deemed to have assigned his or her economic rights to the producer on an exclusive and unlimited basis, including the right to make adaptations or new versions of the program. The producer of a given software program is the physical or legal person who takes the initiative and assumes the responsibility of the work.
License agreements of computer programs and databases may be contained in texts printed by the producer, signed or not by the parties, as part of the graphic and magnetic supports given by the copyright owner to the authorized user, which contain the conditions of use of the program.
The Dominican government recognizes that the adoption of appropriate legislation is only the first step towards providing an adequate protection of intellectual property rights, and it thus has adopted an active role in ensuring the implementation of the new laws. For instance, the National Copyright Office ("ONDA") has actively assumed its supervisory role of copyright protection as established in the new copyright law by systematically prosecuting copyright infringement. Particularly praiseworthy are the joint actions of ONDA and INDOTEL, the telecommunications office, against piracy of broadcasts and satellite transmissions, which has brought significant results, with the closure of illegal establishments and the seizure of infringing equipment in an increasing number of cases. Statistics show that since the adoption of the new law, legal actions against infringement have considerably increased, and the seizure of counterfeit products (mainly cigars, software, videos, compact discs, and cassettes) has reached unprecedented levels.
In this same context, the government has created a National Commission for Protection of Intellectual Property Rights, with the task of defining and implementing the national policy to fight against the violation of intellectual property rights, and of coordinating the activities of the different public bodies that participate in the field.
The international community has acknowledged the efforts undertaken by the Dominican authorities to ensure the protection and prevent the infringement of intellectual property rights. Although the Dominican Republic had been included in the priority observation list under Section 301 of the 1974 US Trade Act, the US Trade Office has welcomed the new government policy in the field and praised in particular the work of the copyright office against piracy. The Dominican Republic also has successfully presented its new intellectual property legislation to the WTO TRIPS Council.
The violation of intellectual property rights is a serious threat to economic activity. With the reform and the continuing efforts carried out to implement and complement it, the Dominican government has acknowledged the growing importance of the role that intellectual property has come to play in the social, economic, and technological development of modern societies in a global market, and has adopted an active policy for their protection that has already started to produce positive tangible results. That should lead to a substantial and measurable improvement of the system of intellectual property protection as a whole in the near future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.