Commons:Copyright rules by territory/Peru

Copyright rules: Peru Shortcut: COM:PERU
Durations
Standard	Life + 70 years
Photograph	Create + 70 years (disclosure since 1976)
Anonymous	Disclosure + 70 years (disclosure since 1981)
Audiovisual	Create/Publish + 70 years (publish since 1971)
Collective	Create/Publish + 70 years (publish since 1971)
Government	Pre-1971 works, official or TUPA documents: Public domain Works from Datos Abiertos platform: Free licenses Other works: Copyrighted
Applied art	Industrial and ornamental designs without originality are PD
Other
Freedom of panorama	Yes
Terms run to year end	Yes
Common licence tags	{{PD-old-auto}} {{PD-PE-exempt}} {{FoP-Peru}} {{TOO-Peru}} {{PD-Peru-1961law}} {{PD-Peru-photo}} {{PD-Peru-organization}} {{PD-Peru-anonymous}}
ISO 3166-1 alpha-3	PER
Treaties
Berne convention	20 August 1988
Univ. Copyright Convention	16 October 1963
WTO member	1 January 1995
URAA restoration date‌*	1 January 1996
WIPO treaty	6 March 2002
*‌A work is usually protected in the US if it is a type of work copyrightable in the US, published after 31 December 1928 and protected in the country of origin on the URAA date.

This page provides an overview of copyright rules of Peru relevant to uploading works into Wikimedia Commons. Note that any work originating in Peru must be in the public domain, or available under a free license, in both Peru and the United States before it can be uploaded to Wikimedia Commons. If there is any doubt about the copyright status of a work from Peru, refer to the relevant laws for clarification.

Background

The Spanish conquered the region in the 16th century. Peru secured independence in 1824. The first copyright law was launched on 1849 was signed under Ramón Castilla government. On October 31 1961, Manuel Prado administration updated the second copyright law which was effective until 1996.

Peru has been a member of the Universal Copyright Convention since 16 October 1963, the Berne Convention since 20 August 1988, the World Trade Organization since 1 January 1995 and the WIPO Copyright Treaty since 6 March 2002. In 2006, Peru established relations with the United States years after the expiration of the original agreement with the Andean Community (Resolución Legislativa Nº 28766). In 16th Chapter of this agreement provides subsisting copyright with minimum protection period of 70 years after the death of the author as natural person or 70 years after the publication of the work as organization (or at least 70 years after its creation if it remained unpublished for 50 years).

As of 2018 the World Intellectual Property Organization (WIPO), an agency of the United Nations, listed the Copyright Law (Legislative Decree No. 822) of 1996 as the main copyright law enacted by the legislature of Peru. WIPO holds the text of this law in their WIPO Lex database. It has been amended by, among others,

• Law No. 30276 on Amendments to the Copyright Law (Legislative Decree No. 822)
• Legislative Decree No. 1076 of June 27, 2008, on the Law Amending Legislative Decree No. 822
• Law No. 28571 on Amendments to Articles 188 and 189 of the Copyright Law (Legislative Decree No. 822 of April 23, 1996)

These do not appear to affect the definitions of protected works or the durations of protection.

Durations

For practical purposes, all unpublished or currently created works are subject to the 1996 law. However, the law excludes works that have not been renewed due to old publication or the author's death. Original Peruvian copyright law in 1849 was signed under Ramón Castilla government and protected the author's rights during their lifetime and 20 years after their death. Years later, a second copyright law signed under the Manuel Prado administration extended the copyright to 50 years after the author's death. The repealed law applied to works of those who have Peruvian nationality or, in the case of non-Peruvian nationals, those who reside in the country.^{[24518/1986 Art. 6]} Posthumous works were protected for a period of at least 30 years from publication.^{[13714/1961 Art. 28]} In 1986 Alan Garcia's government announced that the rights of exploitation of literary or intellectual works were extended to the lives of the author's children, spouse and parents through law 24518 (lacking retroactivity for deceased prior to the date according to article 189 of the 1979 constitution).^{[24518/1986 Art. 1]}

Durations from 1961 law for non-renewed works

Based on the old law starting on 1 November 1962, works that expired before 1996 are non-renewed (and by which time a new 70 year protection was imposed by the Alberto Fujimori administration). For old works protection the use of notices or regulations with the copyright office is not necessary, except in some works. ^{[13714/1961 Art. 9]} Also, in 1994 Peru adopted Decision 351 of the Andean Community, forces that the databases are not excluded as literary works.^{[Decision 351 Art. 58 and DS No 03-94-ITINC]} Unpublished works of an author who died after 1946 or any unpublished draft since 1996 are not subject to the 1961 law. Retrieved from law of October 1961 regulated in 1962 by Supreme Decree No. 061-62-ED for creation of National Copyright Register (Registro Nacional de Derecho de Autor, RNDA, restructured in 1992 as National Institute of Jurisdiction and Protection of Intellectual Property or Indecopi):

• Personal or collaborative works: 50 years after of death of last surviving author prior to January 1, 1946.^{[13714/1961 Art. 25]} Posthumous works published before 1966 were protected for a period of at least 30 years.^{[13714/1961 Art. 28]} Moral rights are inalienable and prevail in spouses, children and heirs.^{[13714/1961 Art. 17, 33 and 34]}
• Government and public entities works: 25 years from first publication before 1971.^{[13714/1961 Art. 24]} For a collective work, the named publisher is considered the copyright owner.^{[13714/1961 Art. 8c and 11]}
• Anonymous works: 15 years from first publication before 1981 (if the author is never disclosed).^{[13714/1961 Art. 12 and 30]}

Some works apply rule of the shorter term.^{[13714/1961 Art. 21]} There are special terms of protection for certain creations:

• Photographs: 20 years from first publication without single dependence in a literary or scientific material before 1976,^{[13714/1961 Art. 27]} whether the author is alive or no. Non-accumulative exclusive rights of circulation for press editorials is for 5 years.^{[13714/196 Art. 44]} If the photographer's name is unknown and no organization is credited, it is considered anonymous work.
• Cinematographic works: 25 years after publication before 1971.^{[13714/1961 Art. 26]} To be protected, the work must contain the name of the natural or legal person, the artistic direction, the authors of the dialogues, the music, the performers and the date of the first public screening.^{[13714/1961 Art. 25]} The producer retains the rights to the work and the term excludes the screenplay, as literary creation, and soundtrack for uses outside the work.^{[13714/1961 Art. 45 and 48]}
• Phonographic neighboring rights: 50 years after of death of the last surviving author prior to January 1, 1946. To be protected, the work must contain the name of the work, the author, the performers, the association, the date, the location of the recording and the company name.^{[13714/1961 Art. 54]}
• Slogans and phrases: "During the time it subsidizes the publication as artwork" with or without music, except that they are common expressions.^{[13714/1961 Art. 31 and 61]} In 1996 law, this type is not protected except if it possess literary or artistic originality qualities,^{[822/1996 Art. 5(j)]} and so they are applied as "trademarks".
• The publication right lasts for 5 years from first publication of unpublished public domain works before 1996.^{[13714/1961 Art. 16]}

Durations from 1996 law

Based on the 1996 law,

• The standard copyright term based on authors' deaths is life + 70 years.^{[822/1996 Art.52]} The first standard works under this law expired in 2017.
• Collective works, computer programs and audiovisual works are protected for 70 years from publication or 70 years from creation if unpublished.^{[822/1996 Art.54]} The first collective works published under this law will expire in 2041, unless part of the work is attributed to person(s).
• Anonymous works are protected for 70 years after publication (if the author is never disclosed).^{[822/1996 Art.53]} The first anonymous works under this law will expire in 2051.

The periods provided for in this Chapter shall be calculated from the first of January of the year following that of the author’s death, or where appropriate that of the disclosure, publication or completion of the work.^{[822/1996 Art.56]}

• Performers' neighboring rights also last until 70 years after the death of the author.^{[822/1996 Art.135]}
• For phonograms and broadcasts, the term is 70 years since publication or the initial broadcast or transmission.^{[822/1996 Art.139.142]}
• Any video, whether it qualifies as an "audiovisual work" or not, is protected until 70 years after the publication (or its creation, if not published in that time).^{[822/1996 Art.143]}
• Simple photographs are protected for 70 years from realization (creation).^{[822/1996 Art.144]} Simple photographs are those which fail to meet the general definition of a "work" in Art. 2.17 of the 1996 law: work: any personal and original intellectual creation.
• The publication right lasts for 10 years from first publication of unpublished public domain works.^{[822/1996 Art.145]}

About public domain

Resolution N° 097-1999/TPI-INDECOPI indicates that even if a work is in the public domain, the moral rights of a work prevail. This file mentions a case in which Indecopi fined an advertising company for using excerpts from Van Gogh self-portrait. This painting was mutilated without attribution for a commercial for a mass circulation newspaper.

About extinction of domain of criminal works

Legally since 2007, the Peruvian State can apply extinction of domain of assets obtained by criminal organizations as a result of terrorism.^{[DL 1373, previously DL 25475 and DL 992, see Art 102 of Peruvian Penal Code as 2021)]} Under civil law, a patrimonial right of the owner constitutes an "furniture" (asset).^{[Article 886 clause 6 of Peruvian Civil Code as 2018; see also Article 819.5 of Peruvian Civil Code of 1936]} The Ministry of Justice states that those furniture considered as "criminal patrimonials" are not subject to the right of ownership, and the application of the extinguishment of assets of questionable origin has a lower threshold in accordance with Sentencia Plenaria Casatoria 1-2017/CIJ-433 which cites Article 10 of this legislative decree as "criminal activity that produces money, goods, effects or profits" and "do not [require] that the illicit activities that produced the money, goods, effects or proceeds are under investigation, prosecuted or have been the subject of a conviction". This is relevant for the Shining Path, since this terrorist organization becoming similar as a legal entity is prohibited from obtaining patrimonial assets, including work for hire, and meets the requirements of article 30 (and consequently article 9a) of DL 822 because this assets cannot be exploited commercially within national legal system, as well as outside the country due to its legal effect.

About applied works

The copyright protection is independent and compatible with industrial works protection that may exist for useful articles.^{[822/1996 Art.4a]} In general, the "originality" threshold of recent designs (adding handicrafts, gastronomy and clothing) is low for industrial protection and high for copyright (see COM:TOO Peru). Resolution N° 063-2001/TPI-INDECOPI indicates that fashion design in industrially useful objects are "applied works" and would receive double protection except the if its trend of applied art is already accessible to the public and lacks novelty to be protected as industrial property. In this case, copyright corresponds exclusively to the signs as original artistic or literary work in text, images, logotypes, 3D forms and colors but not to useful articles per se.^{[823/1996 Art. 128 and 136]}

For those that do not constitute an artistic work, they are industrially protected ("propiedad industrial"). If the work is ornamental, the non-copyright protection will be for 10 years post-registration (if never published before the registration);^{[823/1996 Art. 109]} if the work is patented as industrial, 20 years post-registration. Because the industrial objects are often similar to others, they don't usually receive fashion design protection because their are below the distinctive umbral: "[the sign] is not endowed with the necessary attributes to be the means by which to identify and differentiate the products it is intended to distinguish from others offered for mass-market". See Resolution N° 16543-2010/DSD-INDECOPI. Otherwise, if any sign is above the artistic originality threshold, the principle of "which best privilege for their author" in copyrighted artistic works prevails.

Terms

Individual works

Date of author's death	Date of publication	Copyright tag
before 1 November 1931 date QS:P,+1931-11-01T00:00:00Z/7,P1326,+1931-11-01T00:00:00Z/11	Anytime	{{PD-Peru-1961law}}  {{PD-old-auto-unpublished|deathyear=death year}}
from 1 November 1931 until 31 December 1939	before 2 January 1928	{{PD-US-expired|country=PE|hide_us_warning|deathyear=death year}} or, for 19th-century works without a definite date:  {{PD-old-assumed}}
	from 2 January 1928 until 31 December 1939	{{PD-Peru-1961law}}  {{PD-old-auto-expired|deathyear=death year}}
	from 1 January 1940 until 31 December 1965	The work was in domain public in Peru on the date of URAA restoration (January 1, 1996) because copyright of the posthumous work was valid for 30 years from its publication before December 31, 1965.[13714/1961 Art. 28] The situation in the United States should be marked next to this label.  {{PD-Peru-1961law}}  {{PD-US-not renewed}}
	after 1 January 1966	{{PD-old-auto-1996|country=Peru|deathyear=death year}}  {{PD-old-auto-unpublished|deathyear=death year}}
from 1 January 1940 until 31 December 1945	before 1 January 1946 after 1 January 1966	{{PD-Peru-1961law}}  {{PD-old-auto-1996|country=Peru|deathyear=death year}}
	from 1 January 1946 until 31 December 1965	The work was in domain public in Peru on the date of URAA restoration (January 1, 1996) because copyright of the posthumous work was valid for 30 years from its publication before 1966.[13714/1961 Art. 28] The situation in the United States should be marked next to this label.  {{PD-Peru-1961law}}  {{PD-US-not renewed}}
from 1 January 1946 until 31 December 1953	before 31 December 1928 date QS:P,+1928-12-31T00:00:00Z/7,P1326,+1928-12-31T00:00:00Z/11	{{PD-US-expired|country=PE|hide_us_warning|deathyear=death year}}
	after 1 January 1929	The work expired because its author died more than 70 years ago. Unpublished works are kept for a maximum of 70 years after his/her death. But, some type of work maybe still be copyright in USA on the date of URAA restoration (January 1, 1996).[822/1996 Art. 23 and 52]  {{PD-old-auto|country=Peru|deathyear=death year}}  {{Not-PD-US-URAA|country=PE}}
Others		The work is still protected under 1996 law.

Anonymous or Pseudonymous works

If the author of the work is unveiled during its copyright term (nonexistent in 1849 law, 15 years in 1961 law, extended to 70 years in 1996), it is protected as an individual work. e.g. Rafael de la Fuente Benavides (died in 1985) and his pen name "Martin Adán" are well-known among people, so his works will be protected in Peru until 2055. Applies to any media, including photography.

Date of publication	Copyright tag
before 1 January 1929	{{PD-Peru-anonymous}}  {{PD-anon-expired}} or for 19th-century works:  {{PD-old-assumed}}
from 1 January 1929 until 31 December 1980	{{PD-Peru-anonymous}}  {{PD-old-auto-1996}}
from 1 January 1981	The work is still protected under 1996 law.

Government and legal entities works

In general, only applies to works prior to 1971 from employee(s) of "personas jurídicas" (legal persons), like Government (Gobierno), municipalities (municipalidades) and organizations. Works must be attributed only from official legal entities, unless they are produced by the archives of the National Library or transfered to public institutions and juridical entities.^{[13714/1961 Art. 15]} The deadline is counted from the time of full broadcasting to the public or in any means of communication.^{[13714/1961 Art. 38 and 39]} If the work is claim by natural person ("persona natural") via external participation and was not transferred to legal person, the shortest rule will not apply.

Date of publication	Copyright tag
before 1 January 1929	{{PD-Peru-organization}}  {{PD-US-expired}}
from 1 January 1929 until 31 December 1970	{{PD-Peru-organization}}  {{PD-1996}}
from 1 January 1971	The work is still protected according 1996 law (under "collective work" or "anonymous work" term, with works by the Peruvian Government exceptions).

Non-individual photographs

Applicable only to old and simple photographs that were exhibited or performed in any medium:

• The owner of the negative film cannot be distinguished from other photographs from third parties to be considered as individual or personal firm: for 1961 is if the photo is created only on their literary or scientific works, for 1996 law extends to any photograph that expresses their individuality excluding everyday situations or things. This justifies some photographs with less protection than those that are integral and dependent on the mentioned individuality works.
• The photo does not have a copyrighted subject (for example, drawings or paintings) with the exception of outdoor exposure (freedom of panorama). Nor should it be an unpublished work of others persons up to 70 years post-mortem.^{[13714/196 Art. 40]}
• It is not an frame of a documentary work (except for photojournalism, mentioned only in the 1961 law).

Date of disclosure	Date of creation	Copyright tag
before 1 January 1929	until 31 December 1975 date QS:P,+1975-12-31T00:00:00Z/7,P582,+1975-12-31T00:00:00Z/11	{{PD-Peru-photo}}  {{PD-US-expired}}
from 1 January 1929 until 31 December 1975		In case the photo was not published in the United States or was not renewed in the United States (for example, it does not have the © icon):  {{PD-Peru-photo}}  {{PD-1996}}
from 1 January 1976	before 31 December 1953 date QS:P,+1953-12-31T00:00:00Z/7,P1326,+1953-12-31T00:00:00Z/11	The photograph expired in Peru because the photographs without artistic purpose was created 70 years ago. However, the image could be protected in the United States.  {{PD-Peru-photo}}  {{Not-PD-US-URAA|country=PE}}
	from 1 January 1954	Judged under 1996 Copyright law (except of anonymous photograph under 1961 law).

Not protected

Shortcut

• COM:NOP Peru

See also: Commons:Unprotected works

Previously, under the 1961 law, works passed into the public domain for: (a) folk songs by unknown authors (use {{PD-Peru-anonymous}} for anonymous text and media works published before 1981); (b) works that expired on the current term; (c) works by authors without heirs; (d) works by authors who have waived their copyright; (63) works by authors who died five years ago and real utilities were expropriated by the Ministry of Public Education without opposition from their heirs and editorials (use {{PD-Peru-organization}} for orphaned works of an author who died before 1988 and who was never claimed); (64) legal texts, decrees and publications of public authorities of State as Executive, Executive and Judicial Branches (use {{PD-Peru-organization}} for text and documents published before 1996); (65) informative news content.^{[13714/1961 Art. 62-65]} (1) Ideological or technical content or that scientific work without industrial use.^{[13714/1961 Art. 1]}

Under actual 1996 law, the following are not eligible for copyright protection: (a) the ideas contained in literary or artistic works, processes, operating methods or mathematical concepts in themselves, systems or the ideological or technical content of scientific works, or the industrial or commercial exploitation thereof; (b) official texts of legislative, administrative or judicial character, or official translations thereof, without prejudice to the obligation to respect the texts and mention the source (see Works by the Peruvian Government); (c) news of the day, provided that, in the case of word-for-word reproduction, the source from which it has been taken shall be mentioned; (d) simple facts or data.^{[822/1996 Art.9]} Use {{PD-PE-exempt}}.

Works by the Peruvian Government

Theoretically, all government work of an official nature is usually open access due to their divulgation, requiring respect for their integrity and source attribution. Firstly, article 7b of DL 822 establishes that "official texts" are not protected. Regardless of their originality, specialists Antequera and Ferreyros say that administrative acts on behalf of the State are not protected by copyright as well as other "official works", including judicial texts, resolutions, discussions and others (Bienes de dominio público, the content is not limited to text only). To reduce ambiguities Resolution No. 0730-2006-TPI-INDECOPI the court established in SUNAT v. Instituto de Investigación El Pacífico E.I.R.L for "official texts":

“

For works to be considered an official texts: They must be issued by an administrative or judicial authority or with legislative powers. They contain mandatory mandates or that without being mandatory may affect third parties. They are of general interest to know the content of the texts (regardless of their originality).

”

Exception of this works is from other creations carried out without State powers (Bienes de dominio privado estatal) or third-party collaboration like notes of law firms for private use or unofficial translations which are usually "public" without being "official". Regarding documents without a normative concept, in Resolution No. 056-2004/ODA-INDECOPI (also cited Resolution No. 0927-2004/TPI-INDECOPI) the Intellectual Property Court justified works not exempted from copyright:

“

[The] fact that a given work [of internal nature] was prepared by the employees of a public entity in the performance of their duties or by third parties commissioned by a State entity does not give this the status of an "official text", since the State, like any other natural or legal person, may in turn hold the ownership derived from copyright of a patrimonial right or exercise copyright of a moral right on behalf of the authors. [If the work] does not have the status of a rule, regulation or administrative or judicial decision, in compliance with being published or disclosed to be mandatory or to be in effect to the collective [and] this has been shared by the holder of the rights by any means such as the Internet, since the publication of a protected work whose ownership corresponds to the State or to any public body does not acquire the character of an official text by the mere fact of its availability in any means.

”

State property and public domain

In the context of the Lima principles, the Sistema Nacional de Bienes Estatales (SNBE) establishes which tangible and non-tangible assets from State are in the public or private domain. This applies to freedom of panorama (regardless of their status, they are imprescriptible, i.e. they cannot be appropriated by others) and implicitly to copyright (the 1996 copyright law does not mention which works are not subject to patrimonial rights, so this principle is taken). Points 10 to 12 of Casación 1673-2015 exemplify the differences between the two terms.

• Bienes de dominio público: "A public property is that state property destined for use or that serves as a support for the provision of any public service". Also Casación 1673-2015 justifies that "special form of property, intended for the use of all, for a service to the community or to the national interest, in other words, intended for the satisfaction of public interests and purposes". This first point is taken by confusion with "cultural heritage" and non-ownership of elements.
• Bienes de dominio privado estatal: "A private property is a state property that is owned by the State or by any entity, is not destined to be used or used for any public service. And in respect of which its owners exercise the right of ownership with all its attributes". The State could exercise copyrights for the case. For example, the works of TV Perú are owned by the Instituto Nacional de Radio y Televisión del Perú or El Peruano by Editora Perú.

Reuse from administrative and open data platforms

Beyond of DL 822, in practice, since 2003 the diffusion of official works follow Articles 1 and 4 of the Lima Principles in 2000, in which "everyone has the right to freedom to search, obtain, access and share [official nature] information without interference by public authorities" and "all [official nature] information held by the State does not belong to their owner but is in fact the property of the citizens". Under "principio de publicidad" term of 1993 Constitution, citizens and the mass media have the right to publicize official activities set in text and multimedia without authorization from the authorities; for other documents not yet disclosed, they can request to extract information ("sin expresión de causa") but should not interfere with the laws of the country like documents of "internal nature". The Peruvian Ombudsman's Office (one of the institutions that signed these principles and authorized the media to freely broadcast official information) considers for this type of document as public interest and dissemination and has no royalties for download or copy (see also DS No 072-2003-PCM Art. 13 for free reproduction).

The standard for documents of administrative nature is Texto Único de Procesos Administrativos (TUPA), under Right to Information law (No. 27806) and related. This covers to "the set of acts and formalities carried out by the entities, leading to the issuance of an administrative act that produces individual or individualizable legal effects on the interests, obligations or rights of the parties involved",^{[27444/2001 Art. 1.1]} are official texts^{[27444/2001 Art. 42]} and "principio de publicidad" apply.^{[27806/2002 Art.3]} In DS No 004-2008-PCM, chapter III explicitly states that the formal documents published in the Peruvian State Portal have "official" nature and are within the TUPA standard. The Ministry of Justice has detailed regulations on the uses of administrative documents.

Data outside public documents: In complementation with TUPA, platform of open data is explicitly stated in Right to Information Law for same entities with the TUPA standard (see No. 27444).^{[27806/2002 Art. 2]} Specific government acts (as press releases, official activities, budgets, government procedures and TUPA documents,^{[27806/2002 Art. 5]} whose works are contained in written documents, photographs, recordings, magnetic or digital media)^{[27806/2002 Art. 10]} is usually shared on now the open data portal. Per example, after signing with the Open Government Partnership works from Executive Branch are published in Portal de Datos Abiertos offered by PCM (quoted on R.M. No 195-2012-PCM, now interoperated with Portal Nacional de Datos Abiertos and available via web). While the "official texts" are in the public domain, contents in other formats are under D.S. No 016-2017-PCM, quoting to its definition, "an open data is the information produced by public entities, in its basic form is accessible to anyone from Internet, without restrictions of any kind [...], without cost to obtain it, without limitations for reuse and redistribute by third parties and allows the creation of its derivatives", "open data from public entities is considered to be of an official nature" (Art. 5) and Art. 9 of this decree establishes as open data if they are stored in databases from:

• Portal del Estado Peruano (gob.pe, see Commons:Proposal for standardize a free license for Peruvian government press),
• Portal de Transparencia,
• Portal de Servicios al Ciudadano y Empresa (PSCE, colloquially known as "Trámites"),
• Portal de la Infraestructura de Datos Especiales del Perú (IDEP),
• And other databases managed by the National Office of Government Electronic and Informatic (ONGEI). For example, in Resolución de acaldía No. 186-2014-MML data stored as documents in open data records.

These are some cases in that they consider as official document or open data and their concept usually varies:

• The first reference about administrative documents was indicated in years prior to the Lima Principles.^{[757/1991 Art. 22]} In 1992 a expired law explains that an administrative act consists of resolutions between two public entities, oficios (informative reports), governmental property proceedings and the right of petition with public purpose from public entities (therefore, this law excludes internal events).^{[26111/1992 Art. 2(1), updated in 27806/2003 Cap. I]} For recent documents is required to add the source of the entity, since this entity publishes its updated TUPA page for know what documents are considered administrative.^{[27444/2001 Art. 43]}
• In opinion 59-2019-JUS/DGTAIPD any public process contained in State institutional mailings are considered official texts.
• In 2016, the living records from political candidates (hojas de vida) submitted by JNE are published as "open data" and allow "free and open reproduction".
• In 2017, the TUPA forms are considered free reproduction and distribution.^{[Nº 006-2017-JUS Art.163]} This application is mentioned in a municipal resolution for affidavits.
• In opinion 27-2020-JUS/DGTAIPD any public information generated in database from public authorities is open data, even if it was unpulished to the Plataforma de Datos Abiertos unless modified by a third party or containing sensitive information.
• Other original works in TUPA-standard documents would are not in the public domain accourding to the opinion 06-2020-JUS/DGTAIPD, the Ministry of Justice determined for example that the questions contained in the non-free psychological tests used by another State entity may be disseminated if the Administrative decides for copyright reasons. This exception is also referred to as "trade secret".^{[27806/2002 Art. 15]}

Copyright tags

Shortcut

• COM:TAG Peru

See also: Commons:Copyright tags

• {{PD-old-70}} - For works by authors who died more than 70 years ago if them were died since 1946.
• {{PD-anon-expired}} - For anonymous works made public more than 95 years ago if this one was renewed on the URAA date.
• {{PD-PE-exempt}} - For works exempt from copyright under Peruvian law. Including documents under the TUPA standard.
  • {{PD-PE-signs}} - For reproductions from Manual de Dispositivos de Control de Tránsito Automotor en Calles y Carreteras of road signals, a official document also exempt from copyright under Peruvian law.
  • {{PD-PE-insignia}} - For reproductions from official texts of official insignias (flags, coat of arms and logos), exempt from copyright under Peruvian law.
• {{PD-PCP-SL}} - For works carried out by the Communist Party of Peru-Shining Path. Since it does not have rights to exploit its works outside the territorial legal framework as VRAEM and under an organization that is exempt from obtaining ownership of its works in Peruvian territory, according to the Law of Extinction of Property, the constitution and Art. 30 of DL 822: Indecopi is not legally permitted to protect their "copyright patrimonial rights" them under these criteria. It should be noted that the extinguishment of ownership applies to all "furniture", which in Article 886, paragraph 6 of the Civil Code (as 2018) includes as "furniture" "copyright patrimonial rights".
• {{TOO-Peru}} - For non-original works like simple designs and logotypes.

Peruvian Government

Some Peruvian government or administrative entities works are published under free licenses:

• According to this guide, except as otherwise indicated, works from Portal Nacional de Datos Abiertos (National Open Data Platform) or another interoperable open data platform are subject to templates: {{ODbL}} or {{PD-because|Per COM:Peru, the file from peruvian administrative acts on their Open Data platform is free of rights.}}.
• Photographic works from Flickr account of the municipality of Miraflores are under CC-BY 2.5 PE. Tagged as {{CC-PE-MunicipalidadMirafloresFlickr}}.

Old works under 1961 law

For old works whose protection lasted until 1 January 1996 under Manuel Prado Copyright law of 1961 are PD in U.S. and Peru (before the repeal of the law in 23 May 1996 and URAA date):

• {{PD-Peru-1961law}} - For peruvian authors died prior to 1946 (or that the rights were not inherited for those who died before 31 December 1965).
• {{PD-Peru-organization}} - For peruvian government and juridical organizations works released prior to 31 December 1970.
• {{PD-Peru-photo}} - For all non-individual photographs disclosed in Peru prior to 31 December 1975 (or created more than 70 years ago in 1996 law).
• {{PD-Peru-anonymous}} for anonymous works prior to 31 December 1980 and no register the name of the author in Registro Nacional de Derecho de Autor 15 years following publication.

Threshold of originality

Shortcut

• COM:TOO Peru

See also: Commons:Threshold of originality

Indecopi established parameters to qualify the originality of graphic and photographic compositions. Because of the higher originality threshold (independent of its endeavour, novelty, inspiration and technique, the requirement is to leave some space for the development of its author's personality, not a copy or imitation, referred as "originalidad subjetiva"), simple designs, non-production videographic creations and old photographs without demonstrating their individuality can be uploaded to Commons. See also Andean Community: Threshold of originality.

Simple photographs

Old published photographs have a copyright term of 20 years counted from the first of January of the year following that of the disclosing of the photograph before 1976. The notes shown are based on the rescinded 1961 law:

• For old pictures taken prior to 31 December 1975 and which were not published within an author's own work  fail to meet the general definition of a "work" under 1961 law (and Article 3.4 of Universal Copyright Convention: "The provisions […] not apply to photographic works […] shall not be less than ten years"). The duration of the photograph was for 20 years after performed its first copy, without the author presenting this in a literary, scientific or documentary work, from January 1 of the following year.^{[13714/1961 Art. 27]} They were not renewed during the URAA date.^{[13714/1961 Art. 27 and 57]} Use {{PD-Peru-photo}}.
• The duration is reduced if the following occurs: when the author did not place the name of the label with the message "Reproduction prohibited" or that the author published in a work without a full name or under an unknown pseudonym.^{[13714/1961 Art. 58]} The duration of anonymous works prior to 31 December 1980 was 15 years after publication and expired on 1 January 1996. They were not renewed during the URAA date. Use {{PD-Peru-anonymous}}.
• If they were used in literary or scientific works, they were documentary works or are reproductions of artistic material "of private domain", and the author died before 1946 (of before 1966 if someone had no family heirs), the law considers the photographs as the author's work (life + 30/50 years). In the case of collective works, the date is considered to be the last survivor. If they died after 1947, they are protected by the current law. Use {{PD-Peru-1961law}}.

Recent published photographs below threshold have a copyright term of 70 years counted from the first of January of the year following that of the taking of the photograph. Fortunately, this term usually flexible in the cases and facts shown below:

• The general definition of a "work" in the 1996 law is "any personal and original intellectual creation capable of being disclosed or reproduced in any form that is or may yet become known".^{[822/1996 Art.2(17)]} Simple photographs taken or disclosed since 1976 are those which  fail to meet the general definition of a "work" and only receive neighbouring rights,^{[822/1996 Art.144]} but works above this threshold will receive standard protection (life + 70 years, see below).
• The Court of Indecopi believes that originality in a photograph should be limited to the originality of any work, requirements to protect against plagiarism. According to article 3.c of the Regulation of Inscriptions in the Registry National Copyright Act, provides that "no may be subject to registration the photographs that are limited to simple reproductions of people, of things, or of objects already existing or showing a mere documentary character [...] photography to be a work can not constitute only a simple reproduction of already existing objects".
• Derecho PUCP journal explains examples of highly distinguishable events that surpass the threshold of originality: creative use of lights, unique moment, transmission of a message in their work and the photographer's personality. Below these and other criteria, simple photographs are legislated under Legislative Decree 1044 on unfair competition.

Examples for photographs under 1961 law:

• 
  Photography within an advertisement not considered "literary work". Image protection expired in 1988. It also can't be protected in the 1996 law. See UR.
• 
  Photography taken in 1973 for a sports magazine. Because this is a journalistic assignment for an organization, the photograph remained protected for 20 years until its expiration in 1993. It also can't be protected in the 1996 law. See DR.

Examples for photographs under 1996 law:

• In 2002 the Court considered two images of household appliances as below of threshold of originality due to the lack of creative evidence, despite they are in a catalog with individuality. See Resolution No 354-2002/TPI-INDECOPI.
• Also, in 2002 the Court ruled that a magazine photograph of Skándalo boy band in ordinary dress and solid-colored background receives related rights-only because it lacks individuality. See Resolution No 378-2002/TPI-INDECOPI, Alomi Producciones S.A.C. v Karinto S.A p.13.
• In 2007 the Court justified a photograph of gift box for a web catalog as original work because of its shade selection and during the editing process it carried meticulous details, specifically the colored shade artificially created. See Resolution No 1263-2007/TPI-INDECOPI, Enrique Capella v Grupo Americano de Comercio S.A.C. and Citybank del Perú S.A p.4.
• In 2008 the court determined that press snapshots of sporting, political or weather events lack originality for lack of prior preparation in their production. See Resolution No 2521-2008/TPI-Indecopi, Agencia Efe S.A. v Las Rosas Editorial S.A.C.
• In 2012 the Court concluded that non-artistic techniques of photographs are not protectable (for example, scanning). See Resolution No 059-2012/TPI-Indecopi and Indecopi (2015), p.75.
• In 2013 Indecopi deduced that a promotional photograph of a model wearing clothes of a textile company does bear originality due to the framing, focus and composition to highlight her outfit. See Resolution No 0384-2013/CDA-INDECOPI, Peruvian Connection Ltd. v SENATI p. 9 and 10.
• In 2021 the criteria for originality of photographs were simplified to three points: transmittable, framed and lighting that shows their personality. Between pages 77 and 82 of this resolution the court evident that press photographs from Hildebrandt en sus trece magazine do carry originality because they focus on the gestures of the photographed and the depth of the camera. See Resolution No 0096-2021/TPI-INDECOPI, Plutón Editores S.A.C. v DP Comunicaciones S.A.C..

Videographic process

There is threshold of originality for audiovisual creations but their protection is similar for both works and recordings (publish/create + 70 years). While cinematographic works ("obra audiovisual") are protected in their entirety, the related rights can only be granted to the producer of non-artistic filming ("grabación audiovisual"),^{[822/1996 Art. 140]} which also include performance and broadcasting.^{[822/1996 Art. 143]} Resolution 000111-1999-ODA-INDECOPI establishes differences between the two terms, in particular, and in a similar way to simple photographs, the fixation of the succession of images. But, Resolution 371-2001/TPI-INDECOPI establishes that the main requirement to receive related rights from the producer of non-artistic filming consists of: "present in their creation process a certain degree of creativity, technical or organizational skill sufficient to justify the recognition of a similar right in their favor" (p.e. Pay-per-View events).

Theoretically, a security camera captures in a public place could  lack of their producer (as a public asset is mainly assumed to Peruvian State) to be in the public domain. Security camera footage from Sistema Nacional de Seguridad Ciudadana is provided anonymously to the Peruvian National Police or Public Prosecutor's Office like state cameras in public areas, there is no knowed evidence from the original producer of the material.^{[N° 007-2020-IN Art. 18]} Opinión Consultiva 60-2019-JUS/DGTAIPD indicates that footage records are disclosure if these are for public interest and share in open data process (see also Works by the Peruvian Government ),^{[N° 007-2020-IN Art.22]} the places filmed correspond to "places of public domain",^{[N° 007-2020-IN Art. 7]} human monitoring exists but does not interfere with the surveillance camera's technical or creative ability for recording.^{[N° 007-2020-IN Art. 2]} Also it isn't artistic work since its custody cannot be altered from the original,^{[N° 007-2020-IN Art. 19]} as a result, the footage is below the threshold of originality and don't comply with related rights of article 143 of the 1996 law. Moral rights prevail of the person involved in this media. For these footage in official works, use {{PD-PE-exempt}}.

Logos, designs and other works

Simple or ordinary logos and designs are OK to upload to Commons, because they are below the threshold of originality required for copyright protection. In words of Indecopi and Ministry of Justice and quoting Resolutions No. 1349-2001/TPI-INDECOPI (first paragraph) and 0286-1998/TPI-INDECOPI (second paragraph):

“	According to Article 3 of Decision 351 [of the Andean Decision], in accordance with Article 2 of Legislative Decree No. 822, a work is understood to be any original intellectual creation of an artistic, scientific or literary nature, susceptible of being disclosed or reproduced in any form.[...] Whatever already part of the cultural heritage -artistic, scientific or literary- will not be considered [original creation], nor will [original] the form of expression that derives from the nature of things or from mechanical-only application of the provisions of certain legal norms, nor will [original] the form of expression that is reduced to a simple technique or simple instructions that only require manual skill for this execution.	”
—Indecopi, La originalidad como requisito de protección por derechos de autor ("requisito de la originalidad"), Precedentes y normativa del Indecopi en Propiedad Intelectual (2015)

In 18th paragraph in Casación Número: 1686-2011 explains the use of originality with architectural works satisfying utilitarian functions:

“

The originality of the architectural work [...] must be sought essentially in the creative features that are most distinguishable from the purposes of the model, its nature, its geographic and landscape context, and the functional requirements of the costumer, as well as the technical and urban planning standards applicable to the case; and respond rather, in a particular way or as totality, to the individuality or artistic personality of the author. [An] architectural model [...] must be subjected to analysis for the purpose of identifying whether they respond only to elements of functionality or natural characteristics of the species to which they belong or, on the contrary, contain features that correspond to the whim or personality that the author has wanted to attribute to them, beyond their functionality or technical rigor, resulting in giving individuality to the work, in relation to the rest of the constructions of its species.

”

• 
  Telefónica v Deutsche Telekom (Resolución N° 1127-1998/TPI-INDECOPI): "It's not possible to grant a monopoly on this letter in favour of a single holder".
• 
  Agrotrade S.R.LTDA. v Infutecsa E.I.R.L. (Resolución Nº 0286-1998/TPI-INDECOPI): "When it is certain that a creation lacks individuality and has been copied verbatim, it does not make it a work".
• 
  Resolución Nº 1370-2011/TPI-INDECOPI: "Although it is not a common typeface and may eventually show some differences with respect to the classic graph, this is not sufficient to consider that the work is protected by copyright".
• 
  Resolución Nº 0366-2011-TPI-INDECOPI: "The title of the poster consists of a sentence without creativity and directly informs and announces the content of the event".
• 
  Corporación Oro Verde S.A.C. v Industrias Alimenticias Cusco S.A. (Resolución Nº 008-2008/CDA-INDECOPI): "The borders with Inca motifs and the typeface used to represent the word "CUSCO" do not meet the requirement of originality sufficient to be considered an artistic work".
• 
  Carga Máxima v Del Barrio and Compañía Peruana de Radiodifusión (Resolución Nº 0209-2019/CDA-INDECOPI): the court determined that the "squeaky font style" from Chicha posters for this logo is not original due to its common usage.
• 
  Resolución N° 0546-2005/TPI-INDECOPI: In the "drawing", they bear the texts and the crown of the Statue of Liberty, which lack individuality.
• 
  Resolución N° 0698-2014/TPI-INDECOPI: "The fact that [...] the exclamation mark is written in an irregular form and that each letter or sign has a different color, [does not] determine that such characteristics endow the design applied for registration with the features of originality required by the norm to provide it with protection as a work".
• 
  Resolución Nº 1194-2017/TPI-INDECOPI: "The Court notes that there are no original elements, since they are figures that do not present any particularity, which have been reproduced in the usual manner, without any element having been included".
• 
  Resolución Nº 1192-2017/TPI-INDECOPI (see Resolución Nº 1194-2017/TPI-INDECOPI).
• 
  Resolución N° 4301-2015/TPI-INDECOPI: "These are ornamental elements that lack originality, since the same or similar ones are being used by different people and companies to identify".
• 
  Empresas Luc-Chetti S.A. v Molinoitalia S.A. y Pragma DePublicidad S.A. (Resolución Nº 074-2000/TPI-INDECOPI): "[...] although musical works comprise melody, harmony and rhythm; exclusive rights to the melody can only be acquired".
• 
  Resolución Nº 211-94-DA-INDECOPI: "la protección [...] no abarca la ordenación alfabética de usuarios que contiene [la guía telefónica]"
• 
  Far from fiction, Duff is an element that individually lacks the protection of a work of art. Subsequently, Fox managed to obtain identification characteristics to be registered as beer trademark (Resolución Nº 1508-2009/TPI-INDECOPI).
• 
  Resolución N° 2418-2009/TPI-INDECOPI: While the angle of the handle to the horizontal line or the depth of the concave part of the teaspoon [is slightly different] from the standard shape [...] the object is not an original work, due to the common form of others teaspoons.
• 
  Resolución N° 0184-2008/TPI-INDECOPI: The miniature representation of Machu Picchu in plastic material cannot be granted as an original work, because its registration would prohibit people create other miniature versions of the citadel.
• 
  Resolución Nº 1645-2007/TPI-INDECOPI: "The elaboration of a [portable stage] (similar to this image) may have meant an intellectual effort on the part of its creator, but it does not have enough characteristics to be considered a work of [3D] art, since it consists of a simple arrangement of removable panels in the form of a screen".
• 
  Resolución Nº 0148-2008/TPI-INDECOPI: "However, the Court considers that allowing protection to a design composed exclusively of figures or designs in the public domain, such as the Inca chakana, would mean for no other person to be able to use such designs belonging to the common cultural heritage".
• 
  Resolución Nº 0083-2011/DDA-INDECOPI does not consider protection to use of Tumi with common text.
• 
  A newsline that is not subject to copyright protection but the image, also not considered a work of authorship, is subject to related protection for 70 years post-creation.
• 
  Resolución N° 0082-2023/TPI-INDECOPI: "The additional elements that appear on the images (e.g. rectangles containing phrases or expressions) also do not present particular features that denote a minimum of originality, so they cannot be protected by copyright"

Note: Some creations are above the threshold of originality and  are not valid for upload to Commons:

• Logo of Tres Olivas: a leaf with three olives with tonalities, use of brightness and sensation of movement. See Resolution No 1774-2012/TPI-INDECOPI, Olivos del Sur S.A.C. vs Antonio Moncayo Cortés.
• Emblema La Primera. See Resolution No 2361-2016/TPI-INDECOPI.
• A fictional character in Superman: Krisis of the Krimson Kryptonite. See Resolution No 1164-2014/TPI-INDECOPI.
• A logo with a people with torch to the letter E, above the letter T. Triunfo Empresarial. See Resolution No 0319-2018/TPI-INDECOPI.

Miscellaneous

Currency

Shortcut

• COM:CUR Peru

See also: Commons:Currency

Before 1971

Anverse of sol coin (1892 in this picture, during the mandate of President Miguel de San Román) is PD in Peru.

OK The old peruvian sol is out of circulation, most of designs were created before 1971. The reverse side with the coat of arms was created in 1825.^{[D. L. 11323/1950]} Use {{Peruvian currency}}.

Between 1971 and 1991

 Unclear There is not enough information regarding the copyright status of this. If the design was published anonymously before 1981, use {{Peruvian currency}}.

After 1991

 Not OK Peruvian currency sol is not exempted from copyright.^{[822/1996 Art.9]} In fact, the BCRP considers it to be a work of art but not a government "official work". Therefore, its design and art of the bill is subject to copyright in Peru and prohibits any free reproduction. Law 26714, Article 256, prohibits reproducing bills and coins and distributing them for advertising or similar purposes in such a way as to create confusion or cause the reproductions to be used by third parties as if they were genuine currency.

Please note that not all coins are copyrighted, because they contain previous designs and patterns released to be in the public domain or are below the originality threshold. See discussion.

Cheque

Shortcut

• COM:CHQ Peru

See also: Commons:Cheque

OK in some cases Cheques are also not exempt from copyright law. However, pre-1971 designs are public domain and recent cheques often lack originality by bearing simple data, signatures or common identification codes. So templates must be taken: {{PD-Peru-organization}} or {{PD-simple}}.

De minimis

Shortcut

• COM:DM Peru

See also: Commons:De minimis

There is subtle mention of "de minimis" in determinate cases:

• Media for private use, non-profit educative events or extracts of musical works in official events.^{[822/1996 Art.41(a, b and c)]} In other words, the sentence is equivalent to Fair use and is unacceptable to upload in Commons.
• Broadcasting of well-known quotations and current events in any media. "The exception provided [...] shall be interpreted restrictively, and may not be applied to cases that are contrary to proper practice".^{[822/1996 Art. 44-45, 50 and Decision 351 Art. 22]}
• Don't be an object of intelligent plagiarism ("plagio inteligente", also referred in Article 217c of the Penal Code, 2007):
  • Parodies: Allowed within the legal basis.^{[822/1996 Art. 49]} Resolution No. 0864-2007/TPI-INDECOPI (also No. 4372-2013/TPI-INDECOPI) pointed out that the work is a infringement if the design adopts similarities or derivations from another without the parody intention (ordinary or substantial plagiarism). Best example is the 2008 TV series Magnolia Merino, which complies with the concept of parody when deals with a subject of public interest from other artistic point of view with excerpts based on the scenario, impersonation and musicalization of Magaly TeVe (see Resolution No. 3251–2010/SC1-INDECOPI).
  • Incidental: In APSAV v. Arkinka S.A. (Anuario Andino 19 August 2004, based on Resolution No. 243-2001/ODA-INDECOPI) the limitation of the use of third parties works has been applied when "the appearance within the work should be incidental". Freedom of panorama is also mentioned and justified in both Decision 351 and DL 822 with the term "public places" such as "public museums".

Freedom of panorama

Shortcut

• COM:FOP Peru

See also: Commons:Freedom of panorama

OK {{FoP-Peru}} Based on the 1996 law,

• The following shall be permitted without the author’s consent: ... the reproduction of a work of art on permanent display in a street, square or other public place, or that of the outer façade of a building, where it is done in an art form different from that used for the making of the original, provided that the name of the author, if known, the title of the work, if any, and the place in which it is located are specified.^{[822/1996 Art.43(e)]}
• In all the cases specified in this Article, any use of works that competes with the author's exclusive right to exploit their work shall be equivalent to unlawful use.^{[822/1996 Art.43 (endnote)]} Outside the copyright law, is illegal use to take economic advantage for others or not to attribute the author of the work.^{[29263/2003 Art.1(218)]}

Notes:

• Resolutions No 0372-2006-TPI-INDECOPI and 0760-2010-TPI-INDECOPI (El Comercio v APSAV) specifies the situations in which the work may be legitimately reproduced for acts of exhibition. A "public place" (like MVCS: "bien de dominio público", with exceptions for "dominio privado estatal", see Works by the Peruvian Government)^{[29151/1991, updated in D.S. 008-2021-VIVIENDA Art. 3.3.2]} is an internal or external location that is permanently available to the public including museums. The freedom of panorama applies even to artistic works: the "permanent" status is not lost to works that have been relocated from one public place to another public place or that are in the process of temporary closure for maintenance. The places declared as cultural heritage, even if they were abandoned or never discovered, are property of the Peruvian State and match the definitions previously mentioned.^{[28296/2008 Title I, Art. 2, 5 and 11]}
• Previously, the 1961 law allowed the freedom of panorama for artistic and architectural works, regardless of their legal validity, in public places. There is no mention if the work must be "permanently accessible".^{[13714/1961 Art. 72 and 74]} During the government of Alberto Fujimori, the concept of "public spaces" expands in heavy attended interiors from public institutions, free areas in private institutions and mass transport.^{[25357/1991 Art.2]} In the case of museums, the audiovisual reproduction in newspapers, television channels and movies of works acquired inside the place is also allowed. But, should be noted that these reproductions are "copies of a work" with name of its author, for the copyrighted work itself cannot be used for trade.^{[13714/1961 Art. 73]}
• Copyright protection of architectural works expire 70 p.m.a of their original designer. However, for clarification, if the architectural work was inaugurated before 1960 and never attributed by any author, this lacks coverage by recent copyright laws to protect it because limitations from 1849 law that buildings are not designate as works of art.^{[13714/1961 Art. 7(ll) and 153]} The freedom of panorama is applied in Art. 37 and 38 of the Intellectual Property Code of the Peruvian Association of Architects with condition that "the works are open to the public", even indoors unless strictly reserved by their author.

Stamps

See also: Commons:Stamps

Stamps created prior to 1971

Some stamps were created by Casa de Correos y Telégrafos, today Ministry of Transport and Communications-owned Servicios Postales del Perú (Serpost). In Law No. 13714 of 1961, works by the government had a duration of 25 years and its copyright expired before 1996.

For stamps created by the Government and published before 1971 use {{PD-Peru-organization}}, for other works use {{PD-old-auto}} where applicable.

Stamps created since 1971

The basic law on copyright in Peru is contained in Legislative Decree No. 822 of April 23, 1996.

There is no special mention of stamps in this law as "official work".^{[822/1996 Art.9]} Copyright lasts for 70 years from death, calculated from the 1 January following the year of death, or for 70 years from the year of disclosure for anonymous and pseudonymous works.^{[822/1996 Art.52–53]}

Signatures

Shortcut

• COM:SIG Peru

See also: Commons:When to use the PD-signature tag

OK for a typical signature. Because calligraphies consist of trivial mechanical processes that do not involve artistic and literary efforts, they do not pass the threshold of originality due to the lack of reasonable creative and individual transmission during their process ("mera naturaleza de las cosas"). On Resolution No. 0286-1998/TPI-INDECOPI explains the differences between a creative work and a trivial work, therefore not all creations are authentic and not are subject for their protection. Also, Resolution No. 0148-2008/TPI-INDECOPI sets to the drawings of common use cannot pass the attributes of individuality, making the signatures look the same as the concept of uncopyrighted drawings.

Commissioned works

Shortcut

• COM:COMM Peru

See also: Commons:Commissioned works

Law No. 13714 established the State or organizations as the owner of the works created under commission or employment contract. DL 822 completely loses the transfer of the patrimonial owner, but article 16 of 1996 copyright law establish certain rights to the commissioner (whether natural or juridical person) such as the exclusivity of disclosure of the work or the moral rights of the authors (see Resolución Nº 0127-2008/CDA-INDECOPI pages 11-12).

Retroactivity of expired works under 1961 law

The Peruvian copyright law of 23 April 1996, which entered in force on 24 May 1996 and repeals the previous regulation, indicates in its transitional provisions that "[works] protected under the previous legislation shall benefit from the longer terms of protection provided for in this law".^{[822/1996 Transitional Provision 1]} This occurred days after of URAA renewal date, January 1, 1996 (see discussion explaining the expiration about which works apply to protection and how it affects to Commons). But, some registration guidelines maintained the validity of the 1961 law, until its definitive repeal in 2003.^{[822/1996 Transitional Provision 6]} There is no retroactive effect on works that have already expired before 23 May 1996 according to the regulations indicated and applied to the present time:

• Article 21 of Decision 351 [of the Andean Community] (1993): "The limitations and exceptions to copyright established in the [legislation of Peru] will be circumscribed to cases which do not conflict with the normal exploitation of the works nor resulting unjustified prejudice to legitimate interests of the owner or owners of the rights".
  • This rule is a regional adaptation of Article 18 of Berne Convention (works that were published before 1988 under Universal Copyright Convention and whose copyright expired before 1996 do not enjoy this benefit either)
  • Works that expired under the article 62 of the previous Peruvian law no longer enjoy the rights of collective recognition of the Andean Community. See also Retroactivity of AC countries.
  • Also, if the work of a Peruvian organization was published between 1968 and 1970, it went safely into the public domain in other countries because the expiration of extended protection of 50 years after publication for Andean Community members (Art. 19 and 59), The United States is not part of this community. Similar case for the authors died between 1963 and 1965 and left only assignments. Because they are part of the international community, the members could extend the duration of copyright in their country to pass the URAA date, so this should be taken into consideration in works when employing co-productions with those countries.
  • See also Resolution 489 (19 March 2001), Fábrica de Tejidos Santa Catalina S.A. requested protection of its design to Ecuador because it's published in 1969 and public domain since 1994 in its original country Peru, as a result, the design maintained its protection in Ecuador because in that country it had previously standardized its laws to be compatible with AC laws (in 1994, the 1976 law remained in force, with a protection period of up to 50 years).
• Article 7 of Law 29477 (2009)
  • This refers to the Article 103 of the Political Constitution of 1993: "No law has force or retroactive effect, except in criminal terms, when it favors the defendant". (see Law 27454, and section "Aplicación de la ley en el tiempo" from article "SIBARITA S.A. vs AJINOMOTO DEL PERÚ S.A. (1998)" in Indecopi (2015), p. 63). While criminal violations are usually "retroactive" (such as applying criminal penalties in favor of the copyright author), the protection does not have a "retroactive" effect for works expired by the old law, so the "public domain" status will remain in new laws.
  • The number of the old copyright law is mentioned in Article 1.
• Article III of Preliminary Title of Civil Code of Peru (established in 1984 under D.L. 195, updated in 2020)
  • Aplicación de la ley en el tiempo: "The law applies to the consequences of existing juridic connections and situations. Has no retroactive force or effect, except for those set forth in the Political Constitution of Peru".
  • According to Coca Guzmán, 2020, some cases ("casaciones") were cited in which the principle of irretroactivity is applied. In order for the previous law to maintain the public domain status, the "theory of the accomplished facts" ("teoría de los hechos cumplidos") that will prevent the new law revoking their expiration before its day of coming into force is applied.

Real examples occurred with Resolutions No. 584-2002/TPI-INDECOPI of June 21, 2002 (Fragil v. Discos Hispanos, Tecnología Digital Victoria and Kroton) and No. 1207-2010/TPI-INDECOPI of May 31, 2010 (Mega Entertainment E.I.R.L. v. Novolexis S.A.C) for unauthorized reproductions prior to 1990 of phonographic productions published before this year. According to the 2010 resolution, the old works apply the theory of the accomplished facts, where the immediate application of the rules of 1996 is preferred to the ultraactivity of the repealed rules of 1961 (if the work not was expired explicity before 1996). But the Court did not grant the injured parties whose work was reproduced without authorization by another party under the old law because of a loophole. In the words of Indecopi: "Admit any conclusion [that favours or disfavours to the author] would retroactively apply the existing rule or ultraactively the repealed rule, contravening the ordering juridic-national".

See also

• Peru
• Category:Peruvian FOP cases
• Category:Stamps of Peru
• Commons:Copyright rules by territory/Andean Community

External links

Resolutions search engine from Indecopi website

Caution: The above description may be inaccurate, incomplete and/or out of date, so must be treated with caution. Before you upload a file to Wikimedia Commons you should ensure it may be used freely. See also: Commons:General disclaimer