Comparing Chilean and US Copyright Law: A Conversation With Claus Krebs

Wednesday, March 27th, 2019 David RabanMarch 27th, 2019 • Bookmarks: 123

In March 2018, David Raban traveled to Santiago, Chile, where he conducted research on Chilean copyright law. As part of his trip, he spoke with Claus Krebs, a Chilean copyright attorney with Clara & Cia. You can find the whole interview in podcast form here.

To start, would you mind describing a little bit about the copyright system in Chile and what are some of its core features?

It is mostly about what is the right of the author with respect to his works. That is the main emphasis, I would say, regarding how the system is made here. As soon as an author creates a work, he automatically obtains the right to the work he creates.

Approximately 10,000 copyrights are registered in the country every year. There’s something like a total of 200,000 or 800,000 copyright registrations in all of Chilean history—which is a pretty small amount! Considering that there [are] something like 17 million people in the country, [why is this?]

There is no obligation of registering a copyright because you don’t really have to do that. You can always prove you’re right in court. What you get with the registration is merely a presumption in your favor that you are the author. If someone proves otherwise, that can be torn down, so to speak. So, the incentive to go and register is not that large. Unless you’re a publishing company, for most people these are standard works, and that’s probably why they don’t register.

Is it worthwhile to register your copyright in Chile, or only if a problem shows up?

It’s worthwhile if you are for instance in a dispute or other controversy or if someone is trying to use your copyrights. The works of foreign creators are recognized here based on international treaties, so that should be no problem. But if you really want to enforce your rights here, and you think that there’s a chance there is going to be a local controversy, then you should definitely register it locally.

When is it useful to litigate [or] not useful to litigate? What does a company have to think about when they consider what to do with enforcement?

I think here you would want to assess that by looking mainly at the profile of the infringer. This is a developing country, and there is copyright infringement. You can explain that by people just trying to make a living. And even if you do sue, you know you won’t obtain much in return, so it’s simply not worth it. You would get into litigation if it had some public relevance or if you can really expect that the case would have a result that would benefit you in more than simply getting some money in return.

There’s not a lot of punitive damages [in the Chilean copyright system]. It’s mainly compensatory. Thus, you get what’s needed to make yourself whole [after you’ve been damaged]. But it’s not as though [the system is] going to punish you to deter anyone else.

No, punitive damages are not part of the system here.

So what happens if there are people who are doing copyright infringement? What ability is there for deterrence of crimes of this nature when it’s only a compensatory damages scheme?

Here, you can also start criminal actions. And I think that’s the main deterrent. And in cases such as this, that is what first and foremost is done: start a criminal action. That means you have to spend some time in jail if you infringe to such a degree.

It’s very interesting to me the difference between the common law and the civil law. In the United States, we have the common law system, which includes following judicial precedents. In the Chilean system, which has a civil law system, each case largely doesn’t have any impact on any of the cases that come after.

Well, the interesting thing about how it works in the U.S. is that when you have a practical problem that you have to resolve, you usually analyze it a lot to see how you would resolve it. And that creates a certain type of depth in how the system works. And that has, as you say, [an impact on] what rules you have in the future. But here, you just have a piece of law that you [analyze] every time. Of course there are going to be particular cases that have a certain influence; it’s not really an island in the sense that this case could lead to an outcome that is composed entirely different[ly]. To a certain extent, [Chilean] judges will consider how other [Chilean] judges have resolved matters. But it’s just that. It’s something they will look at, and there’s no obligation for the judge to do so, and with certain frequency, a [similar] case will be decided in a different way.

I wanted to ask, as we’re wrapping up, what you’d like to see changed about the Chilean copyright system.

Perhaps the main improvement that could be done here is to make better distinctions between different types of media than we have now. I think it is still too much based on traditional media and traditional forms of publishing things. There are many challenges concerning today’s digital world that simply cannot be addressed by the law as it is now. From that point of view, there is still a lot of work to do. Also, there is the advantage of how the U.S. system works. With every new case, with these developments involving modern technology, that becomes part of the system. That helps to keep the system up-to-date. I think that’s a little bit missing in the law [here] as well.