WIPO ADR Stories: How WIPO’s Online Tools Help the Resolution of Copyright Disputes in Mexico
In order to respond to the meeting and travel restrictions caused by the COVID-19 pandemic, the National Institute of Copyright of Mexico (INDAUTOR) and the WIPO Arbitration and Mediation Center (the WIPO Center) make available online conciliation meetings to resolve copyright disputes in Mexico. Online conciliation meetings have become a popular option to build back better post-pandemic.
The Conciliation Procedure before the National Institute of Copyright of Mexico (INDAUTOR)
Since 1997, INDAUTOR has been conducting a conciliation procedure called Procedimiento de Avenencia, under the Mexican Federal Copyright Law.1 In this out-of-court procedure, INDAUTOR assists parties to resolve copyright disputes, and if an agreement is reached, it can be enforced as a court judgment.
Copyright holders who consider that another party infringed their rights provided for in the Federal Copyright Law may choose to initiate the corresponding legal actions or to use INDAUTOR’s conciliation procedure. This procedure allows for a dispute to be resolved amicably through mediation or conciliation, with access to specialized neutrals in the field.
According to INDAUTOR’s data, the type of disputes that have been settled through their procedure includes: payment of royalties, breach of contract, reservation of rights, and copyright infringement.
Since 1998, INDAUTOR has received more than 21,300 conciliation requests, with the lowest number of requests filed during the pandemic in 2020 and 2021.
Conciliation meetings normally take place 20 days after the filing of the request before INDAUTOR. If a party does not appear at the meeting, INDAUTOR can fine that party. The conciliator2 participates in the mediation meetings to help parties reach a solution. It is worth mentioning that the conciliator does not have the authority to make determinations of fact or law. The parties have to agree on the resolution of the dispute by mutual consent.
The Effect of the COVID-19 Pandemic and the Provision of Online Conciliation Meetings
Prior to the COVID-19 pandemic, all meetings in the Procedimientos de Avenencia took place in person at INDAUTOR premises in Mexico City. However, in early 2020 the restrictions on physical meetings and traveling resulting from the COVID-19 pandemic disrupted the regular operations of national courts and IP adjudicative bodies, including the provision of the Procedimientos de Avenencia by INDAUTOR.
To accommodate COVID-19 safety considerations, in March 2021, INDAUTOR and the WIPO Center implemented a co-administration system that includes videoconferencing and tracking tools to continue providing mediation and conciliation services. In order to make this possible, INDAUTOR amended its internal regulations in consultation with frequent users of the service. The revised Regulation was then published in the Official Journal of the Federation, allowing for the use of information technology when conducting conciliation procedures. Since February 27, 2022, if all parties agree, conciliation meetings are held through videoconference, allowing parties located in remote places to participate, saving time and costs.
The online conduct of conciliation meetings has had a considerable impact on the participation of the parties in the proceedings. The general in person party participation rate is 29.4%, whereas when video conferencing options are used the party participation rate increases to 90.5%. Online conduct also allows for greater communication amongst the parties involved and has increased settlement rates. To date, the WIPO Center and INDAUTOR have hosted over 90 online conciliation hearings, with the parties involved providing very positive feedback.
Copyright collective management organizations (CMOs) are regular users of the conciliation procedure to negotiate fees for the public communication of musical and audiovisual works in commercial establishments through the transmission of TV or radio signal, including private service subscriptions. CMOs often request INDAUTOR’s conciliation services regarding the availability, retransmission, and public communication of the works of their members.
The ability to participate in the conciliation procedure through videoconferences from any place the parties may be situated, implemented by INDAUTOR given the health restrictions caused by the pandemic, has facilitated the management of licenses and collection. Since this effective and state-of-the-art mechanism has been made available to the Mexican creative community, it has allowed us to achieve amicable settlements and agreements in copyright matters remotely and expeditiously, without having to initiate long and costly court proceedings. Through the online conciliation procedure, we have strengthened the communication with our users, our institutional image, and the efficiency of these technological tools in the collective management activities carried out by the Sociedad de Autores y Compositores de México, S. de G. C de I.P. (SACM)Omar Lugo Andere, Director of Licensing and Collection of SACM
Without a doubt, the use of online tools in the Procedimientos de Avenencia has exceeded our expectations. Not only are they an option to solve challenges that arose from the pandemic, but they have improved the efficiency of these proceedings with higher participation and easier follow-up. I believe these online tools are here to stay, as this directly aligns with our standards of management, enhancing the quality of online administration through the use of multiple tools, increasing the scope, quantity, and quality of such proceduresCarlos Manuel Gómez, Director General of EGEDA MEXICO, SGC
The implementation of INDAUTOR’s online mediation and conciliation services, in collaboration with the WIPO Center, is an example of a practical solution to overcome the challenges caused by the COVID-19 pandemic. These changes have helped users of the Mexican copyright protection system resolve their copyright disputes more efficiently.
In recent years, the WIPO Center has seen a marked increase in copyright and content-related mediation and arbitration cases (41% of the WIPO Center’s ADR cases in 2021), including in the digital environment.
WIPO Arbitration and Mediation Center