The Court of Justice of the Andean Community has issued three novel rulings that will be of great use to creators of audiovisual works who wish to use elements protected by intellectual property.
In preliminary interpretation 237-IP-2021, the Court stated that the non-commercial use of a trademark without the owner’s authorization does not constitute trademark infringement.
This means that if the trademark is not used to identify products or services, and the third party using it is not a competitor of the owner, it should not be considered trademark use in the legal sense. However, this provision does not apply to well-known trademarks, which enjoy special protection.
On the other hand, in preliminary interpretation 256-IP-2021, the Court emphasized that the exception of incorporating works from the public domain should be applied under criteria of sound judgment. Moreover, this incorporation must not undermine the normal exploitation of the work or affect the copyright owner. This implies that it is necessary to analyze the relevance of the work in the final product, whether its use has commercial purposes, and if any eventual transformation or intervention could affect the owner’s rights.
Finally, the Court clarified that, although compilations must respect the rights of the owners of the individual works that compose them, contractual disputes regarding some of these works cannot deprive the compilation of its protection.