On August 28, 2024, Decree No. 765/2024 (hereinafter “the Decree”) was published in the Official Gazette amending the regulation of Intellectual Property Law No. 11.723, which determines the legal regime of intellectual property and copyright protection.
The new regulation is based on the recognition of the exclusive right enjoyed by the authors of literary, dramatic and musical works to authorize the public performance of their works, and in this sense, it intends to clarify its scope of application and ensure the effective protection of their intellectual rights. It also seeks to adapt the terminology of Law 11.723 to the appearance of new technologies that translate into new ways of carrying out the public performance of an intellectual work.
The Decree makes the following regulatory changes:
- It replaces Article 33 of Regulatory Decree No. 41223/34 providing that public performance shall be understood as that which is carried out in a space of public access, free and directed to a plurality of people, regardless of the purposes it pursues, expressly excluding from such concept that which is developed in a private environment, whether of permanent or temporary occupation.
- Establishes that the public performance of a work shall be considered to be that which is carried out by mechanical, electronic or digital means, including the Internet.
- Replaces Article 35 of Regulatory Decree No. 41223/34 establishing that works may not be publicly performed or transmitted or retransmitted by any means, without the express authorization of the owners of their rights, their successors in title, representatives or the collecting societies that represent them.
- It establishes the right of authors to receive equitable remuneration from any person who occasionally or permanently obtains a direct or indirect economic benefit from the public use of their work.
- It provides as an exception to the payment of equitable remuneration, occasional performances made for didactic purposes, or upon patriotic commemorations, in educational establishments or entities authorized by the State.
In this sense, the Decree envisages Internet and digital platforms as new public spaces, in which works may only be reproduced with the express authorization of the owners of rights or their representatives.
Finally, the new regulation excludes from the legal regime of public performances any event that takes place in a “private environment” or that was performed in a place of restricted access and not open to the general public, whether of permanent or temporary occupation. Therefore, certain industries, such as hotels, tourist accommodations and private event halls, will no longer be required to pay royalties to the Argentine Society of Authors and Composers of Music (SADAIC), thus putting an end to a historical controversy that forced the payment of royalties for the mere presence of televisions in hotel rooms.
