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By: Jaime Israel Dávila Gómez, Attorney.
In terms of copyright, the public domain consists of the collection of works whose copyright is no longer in effect and, therefore, can be freely used by anyone, provided that moral rights are respected.
The rights that must be respected, even if a work is free to use, correspond to the so-called moral rights, which are as follows: the author of the work must be credited, the work cannot be modified, and it must not be used in a way that damages the author’s reputation or diminishes the value of the work.
In our country, economic rights (which allow exploitation) last for the author’s entire lifetime and for 100 years after their death, with the 100 years counted from the year following the creator’s death.
Once the author has passed away and the 100 years have elapsed—meaning that the economic rights have expired—the moral rights mentioned two paragraphs above fall to their family or, in certain cases, to the Mexican State to enforce.
Currently, there are several movements related to copyright (such as Copyleft and Creative Commons, among others) that propose frameworks or regulations allowing authors to create works that enter the “public domain” from the moment they are created, so they can be freely used by anyone. However, since these frameworks do not conform to Mexican law, and Mexican law is restrictive in that copyright (especially moral rights) cannot be waived, using these “free” works always carries a risk and depends entirely on the author not asserting their rights.
In recent years, this issue has been more frequently and intensely debated as major copyrights have entered the public domain (Winnie-the-Pooh, for example), and other significant works (such as the early versions of Mickey Mouse) will soon enter as well. This will spark an interesting debate and lead to new criteria regarding intellectual property rights that we have not had to develop as a society before, since most significant copyrights in the world were created relatively recently (less than 100 years ago), when modern entertainment industries began to emerge.
