No legislation available.

Section 141 Draft Bill; order for search and seizure.

No legislation available.

Section 141; 137-144; Draft Bill-Order for disposal.

No information available.

Ibid.

Section 137; Draft Bill.

Section 50; Draft Bill, restricting importation.

Section 43-46; 133-135; Draft Bill; criminal liability and penalties.

Articles 41 and 42 To ensure the enforcement of intellectual property rights, both the Industrial Property Law and the Law on Copyright and Related Rights allow the right holder to bring legal proceedings, whether civil or criminal, to protect his rights against infringement or to prevent or halt an infringement and avoid its consequences. There is no provision for such remedies under administrative procedures. Civil proceedings follow the trial procedure laid down in the Code of Civil and Commercial Procedure (Articles 182 of the Industrial Property Law and 133 of the Law on Copyright and Related Rights), without prejudice to the possibility of the parties involved resorting to alternative means of dispute settlement such as conciliation and arbitration, which are regulated by a special law. In criminal cases, it is for the Public Prosecutor to prosecute those responsible, although the right holder or licensee may initiate the prosecution by filing a complaint for violation of his rights or join proceedings initiated ex officio (Articles 206 of the Industrial Property Law and 128 of the Law on Copyright and Related Rights). In addition, even before any of the above-mentioned actions is initiated, it is possible to request precautionary measures or orders to protect rights, prevent infringements or obtain and preserve evidence (Articles 186 and 207 of the Industrial Property Law and Articles 128bis and 133bis of the Law on Copyright and Related Rights). Border measures suspending the importation or exportation of goods that injure or infringe the rights of a trademark proprietor or copyright holder may also be ordered (Articles 190 of the Industrial Property Law and 129 of the Law on Copyright and Related Rights). Article 43 As regards the powers of the judicial authorities to order a party to a proceeding to produce evidence which lies within its control, neither the Industrial Property Law nor the Law on Copyright and Related Rights contains any such provisions. However, Article 182 of the Code of Civil and Commercial Procedure, which is residually applicable, does provide for such authority, albeit limited to documentary evidence. This Article stipulates that when one of the parties to a proceeding needs to use a document which, it alleges, lies in the control of the opposing party, it must produce a copy thereof or, at least, all the information available to it concerning its contents and, moreover, prove that the document is or was in the possession of the opposing party. According to the same provision, in these circumstances the Court may order that the opposing party be warned to hand over the document within the time-limit fixed by the Court itself and if it does not hand over the document or produce contrary information, the Court may decide to accept the text of the document provided by the party requesting disclosure or declare that the information supplied concerning its contents is to be considered accurate for the purposes of the proceedings. If the evidence concerning the existence of the document in the control of the opposing party is contradictory, the Court will reserve the aforementioned ruling for the definitive judgement, on which occasion it will in its wisdom, draw the appropriate conclusions from the statements of the parties and the evidence submitted. There are various provisions in the Guatemalan legislation for the protection of confidential information. In principle, while fundamentally guaranteeing that administrative acts, like judicial proceedings, will be public, the Constitution provides, as an exception, for the case in which someone may have supplied data under a guarantee of confidentiality. In Article 194 of the Law on Industrial Property there is an express reference to the obligation to protect confidential information, where the judicial authorities, having ordered a border measure, authorize the person granted the measure free access to the goods or products detained in order that he may inspect them and obtain further evidence in support of his claim. Likewise, Article 199 of the Law on Industrial Property, which enunciates the principle of reversal of the burden of proof in cases of claims for infringements of a patent-protected process, recognizes that in the submission of any evidence to the contrary, account must be taken of the legitimate interests of the defendant regarding protection of his trade secrets, although this does not relieve him of the burden of proving that he uses a process different from the one protected by patent. Again, Article 129 of the Code of Civil and Commercial Procedure sets out the general rule that evidence can be submitted confidentially when, on account of the nature of the evidence, the judicial authority deems it appropriate. Finally, Article 63 of the Judicial Organization Law, while enunciating the principle that acts and proceedings of the courts of the Republic are public, admits as exceptions to that principle cases where, by legal order or on grounds of public morality or security, they must be kept confidential. Thus, this provision authorizes the court to declare, in very special cases and under its strict responsibility, acts or proceedings confidential. Article 44 In accordance with Article 185 of the Industrial Property Law and Article 134bis of the Law on Copyright and Related Rights, in ruling that any of the actions for the protection of intellectual property rights is applicable, the judicial authorities must, in addition to determining the merits, depending on the case and in the light of the need for proportionality between the seriousness of the infringement, the remedies ordered and the interests of third parties, order the cessation of the infringing acts or acts of unfair competition and the adoption of the measures necessary to prevent the consequences and avoid a repetition thereof, as well as the award of damages. According to express provisions of both laws, in both civil and criminal actions the Courts may also order, as a precaution, an immediate halt to the use, application and marketing of the infringing products and any measure necessary to avoid the continuation or repetition of the infringement. Article 45 Article 1645 of the Civil Code establishes the general rule that anyone causing harm or prejudice to another, whether intentionally or by neglect or carelessness, is required to make good the act, except where it can be demonstrated that the harm or prejudice was a result of inexcusable negligence or fault on the part of the victim. The Judicial Organization Law also includes a general provision establishing that, in the event of an award of damages, the ruling shall specify the net amount. The provision adds that, if this is not possible, the ruling shall establish at least, in accordance with what has been requested, the basis for determining the assessment of the points at issue, or for the fixing of the amount by experts. The Industrial Property Law establishes in Article 185(e) that in a judgement declaring any of the actions provided for in the Law applicable the court must rule on the award of damages. A similar rule is set out in Article 134bis(d) of the Law on Copyright and Related Rights. As to the matter of attorneys' fees, Article 572 of the Code of Civil and Commercial Procedure sets out the general rule that each party to the proceeding is directly liable for costs incurred for the actions it takes or requests. On the other hand, the rule also establishes that in the event of an order to pay costs, the losing party shall compensate the other for all the necessary expenses it has caused. Indeed, Article 573 of the same Code sets out the general requirement that the court, in its final ruling, must order the losing party to pay the other party's costs. This requirement to pay costs is subject to exceptions in instances where judicial action has obviously been taken in good faith, where the claim or counterclaim involves exaggerated pretensions, where the judgement takes account solely of part of the fundamental pretensions of the claim or counterclaim, where defences of importance invoked by the losing party are admitted, where neither party wins or where the defendant accepts the claim. Furthermore, Article 578 of the Code of Civil and Commercial Procedures specifies the following as being part of the reimbursable costs: the fees of the chief attorney, notaries, attorneys, experts, depositaries and administrators; as well as costs incurred for seizures, injunctions, orders, publications, certifications, inventories, entries in registers and compensation of witnesses for their time and travel costs. This rule makes it clear that judicial orders shall not entail personal costs other than travel expenses, payments for vehicles, transport and communications and purchases of substances or other articles necessary to ascertain a fact. Article 46 The disposal of the infringing goods outside the channels of commerce may be ordered definitively (in the ruling that closes the proceeding) and/or provisionally. Article 185(a) of the Industrial Property Law stipulates that in a judgement declaring any of the actions provided for in the Law applicable, the Court must, as appropriate, order that the infringing goods be disposed of outside the channels of commerce or destroyed, principally when they affect or may affect human or animal or plant life or health or the environment. Similarly, Article 185(b) of the Industrial Property Law stipulates that, in the judgement, the court must also, where appropriate, order that materials/implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort for the owner, disposed of outside the channels of commerce or destroyed as articles of unlawful trade, in such a manner as to minimize the risks of further infringements. Moreover, Article 187(e) of the Industrial Property Law specifies that, among the measures designed to protect the rights of the plaintiff or petitioner, the court may order the immediate cessation of marketing of the infringing products, together with the seizure and removal to court warehouses of the infringing products and the materials used to commit the infringement, including their destruction where they are causing harm or constitute a risk to human, animal or plant life or health or to the environment. Likewise, the Law on Copyright and Related Rights establishes in Article 134bis that in a judgement declaring any of the actions provided for in the Law applicable the court must, in addition to determining the merits, order that the infringing goods be disposed of outside the channels of commerce or destroyed as articles of unlawful trade. Article 133bis of the same Law also stipulates that the court may order, as a provisional remedy, any measure necessary to prevent the continuation or repetition of the infringement, including seizure of the infringing products and the equipment and materials resulting from or used to commit the infringement, and the means used to carry out the infringement. According to the same Article, the confiscated products may be destroyed where they are causing harm or constitute a risk to human, animal or plant life or health or to the environment. Article 47 Neither the Industrial Property Law nor the Law on Copyright and Related Rights provides for such a possibility. Similarly, none of the procedural provisions which residually apply or which establish the civil and criminal procedures grants any power to the court to issue an order of this kind. However, the Law for the Protection of the Subjects of Proceedings and Persons Connected with the Administration of Criminal Justice establishes, inter alia, protection for witnesses, experts, consultants, related complainants and other persons exposed to danger on account of their participation in criminal proceedings. Such protection may include personal safety measures, change of residence, change of identity and any other changes that the Administrative Board of this system may determine. Any of the benefits contained in the above-mentioned Law may be granted only on the basis of a prior study that must take into account such factors as the danger to which the person requesting the benefit is exposed, the gravity of the punishable act and its social significance, as well as the evidentiary effect of the declaration in incriminating the participants, both intellectual and material, in the criminal act and whether the declaration might lead to the identification of the participants in any other criminal acts related to that which is the subject of investigation. Article 48 Under Article 537 of the Code of Civil and Commercial Procedure, whoever obtains enforcement of a protective measure or order shall be required to pay the other party costs and damages in any of the following circumstances: - If the application is not filed within the legal time-limit (15 days); - if the order is revoked; or - if the application is declared inadmissible. The Industrial Property Law (Article 195) and the Law on Copyright and Related Rights (Article 132) contains similar provisions for determining the liability of those who request border measures with respect to the importer, the consignee and the owner of the goods detained. In order to ensure that these provisions are effective, Article 186 of the Industrial Property Law and Article 133bis of the Law on Copyright and Related Rights stipulate that in the event of any application for a protective measure or order, the court may, if it deems it appropriate, include in the ruling in which such measures are decreed a requirement, that prior to their application, sufficient security or other assurance should be provided to prevent abuse and to protect the party affected by the measure and the authorities themselves against any damage or injury which might ensue. These provisions are applicable to border measures (Articles 191 of the Industrial Property Law and 130 of the Law on Copyright and Related Rights). The authorities who order a measure will be exempt from liability if they acted in good faith. Article 49 The Guatemalan legislation does not provide for administrative procedures for enforcing intellectual property rights. Article 50 In conformity with Article 530 of the Code of Civil and Commercial Procedure, which is residually applicable, whoever has good reason to fear that during the time necessary to enforce his right that right will be threatened by imminent and irreparable damage may request the court in writing to grant such urgent measures as would appear, according to the circumstances, to be most appropriate in order provisionally to ensure the effectiveness of the decision on the merits. This provision is also included in the first paragraph of Article 186 of the Industrial Property Law and in Article 133bis of the Law on Copyright and Related Rights. Under the Guatemalan legislation, anyone initiating or intending to initiate an action relating to industrial property rights or acts of unfair competition may request the court to order protective measures. The court, provided it has been given proof of the ownership of the right infringed and evidence indicating a reasonable presumption of infringement or the imminence thereof, has the authority to order forthwith the measures requested within a period of not more than two days from the presentation of the application and, if it deems it advisable, can in the same ruling require that prior to the execution of such measures the applicant shall provide security or other assurance sufficient to protect the party affected by the measure and the authorities themselves and also to prevent abuse. In the latter case, the measure must be executed within 48 hours of security being given (Articles 186 of the Industrial Property Law and 133ter of the Law on Copyright and Related Rights). When a protective measure is ordered before the main action is initiated, it will automatically lapse if the person obtaining it does not file a complaint within 15 days of the date on which it was executed (Articles 186 of the Industrial Property Law and 133ter of the Law on Copyright and Related Rights). Among the measures that may be taken to prevent an infringement, prevent infringing goods from entering channels of commerce or preserve evidence relating to an alleged infringement, Articles 187 of the Industrial Property Law and Article 133bis of the Law on Copyright and Related Rights stipulate that the judicial authorities may order: - An immediate halt to the use, application, disposal and marketing of the infringing products and the unfair acts; - an immediate halt to the infringement alleged by the right holder; - seizure of the infringing products, including containers, packets, packaging, labels, printed or advertising materials, machinery or other materials connected with the infringement or used to commit it, and of the means principally used to carry out the infringement; - prohibition of the importation of the aforementioned products, materials or means; - confiscation and removal to court warehouses of the aforementioned products, materials or means; - suspension or cancellation of registrations or sanitary licences or licences of any other kind necessary for the admission, distribution, sale or marketing of the infringing products; - judicial inspection of places, documents or objects that have a bearing on the right infringed; and - any other measure necessary to prevent the continuation or repetition of the infringement or acts of unfair competition. The last paragraph of the above-mentioned Article 187 of the Industrial Property Law makes it clear that mere removal of the marks illegally used or affixed will not prevent the protective measures ordered from remaining in force and neither will it be sufficient for the goods or products to enter the channels of commerce. It is important to note, that under Article 188 of the Industrial Property Law and Article 133 quater of the Law on Copyright and Related Rights, once a protective measure or order has been granted to ensure the results of a proceeding regarding a claim for restoration in a civil or commercial action, it cannot be deprived of its effect by means of a bond or security, which may only be lodged so as to lift measures to ensure a claim for compensation. Again, in accordance with Article 189 of the Industrial Property Law, the petition for protective measures or the complaint itself may contain a request for a judicial inspection of places, documents or objects that have a bearing on the right infringed, or where it is alleged that acts leading to the infringement of industrial property rights or acts of unfair competition are being committed or prepared, in which case the court will order and execute it without requiring any security. In order to follow this up, according to the above-mentioned provision, the ruling ordering a judicial inspection will implicitly include the use of a search warrant. Such judicial examination may be supplemented by the presence of experts designated by the applicant or by the court itself; likewise, the court may order that movables or documents be produced. On application by a party and at the court's discretion, scientific methods of obtaining evidence may also be used, photographs taken or audiovisual recordings made of the objects or places inspected, while documents may be examined and copied by any means. In connection with the judicial inspection the court may order the protective measures that have been requested and, where appropriate, establish the amount of the corresponding guarantee, in accordance with the provisions of the above-mentioned Article 186 of the Law. If, within the next five days, the applicant has not provided or constituted the security fixed, the court will order the lifting of the measures decreed. Articles 51, 52, 53, 54, 55, 56, 57, 58, 59 and 60 Both the Industrial Property Law and the Law on Copyright and Related Rights allow the holders of a registered trademark or a protected work or phonogram, or their licensees, to request the suspension of customs clearance and release of the goods or the export process, but only in the case of pirated goods may the suspension of clearance be requested directly from the customs authorities (Articles 190 of the Industrial Property Law and 129 of the Law on Copyright and Related Rights). In both cases, the procedure applicable is the same as that laid down in the two laws for requesting provisional measures or orders, to which reference has already been made, including with respect to the submission of the request, the production of evidence and the possibility of security or other equivalent assurance being required. The suspension of imports or exports will remain in force for a period of ten days from the date of notification of the relevant ruling. This period may be extended for a further ten days only if the goods are counterfeit goods that infringe a trademark right; however, where the importation of counterfeit or pirated goods is concerned, the measure may be confirmed as a precautionary measure (Articles 193 of the Industrial Property Law and 130 of the Law on Copyright and Related Rights). Once a measure has been ordered, the person requesting the measure must be allowed to inspect the products detained to obtain further evidence in support of his claim (Articles 131 of the Law on Copyright and Related Rights and 194 of the Industrial Property Law). According to Article 190 of the Industrial Property Law, imports of a non-commercial nature contained in travellers' personal luggage may not be suspended. Article 61 As already indicated, in criminal cases the Department of Public Prosecutions is responsible for taking criminal proceedings against the accused although the holder or licensee of the rights infringed may initiate the prosecution by reporting the infringement of his rights or join in a prosecution initiated ex officio (Articles 206 of the Industrial Property Law and 128 of the Law on Copyright and Related Rights). The courts with jurisdiction in the place where the offence was committed are competent to try criminal cases of intellectual property right infringement. With respect to criminal procedures, please consult Guatemala's replies to questions 22, 23, 24 and 25 of the WTO Secretariat's check-list of issues on enforcement. In keeping with the classification of infringing conduct set forth in Articles 274 and 275 of the Criminal Code, infringements affecting all intellectual property rights recognized under the relevant laws are subject to the prescribed criminal procedures and penalties. Article 274 of the Criminal Code determines the following types of conduct as offences against copyright and related rights: (a) The false attribution of the status of author and/or copyright holder, performer, phonographic producer or a broadcasting entity; (b) the deformation, mutilation, modification or any action that causes injury to the integrity of the work or to the honour and reputation of the author; (c) the reproduction of any work, interpretation or performance, phonogram or broadcast, without the authorization of the author or relevant right holder; (d) the adaptation, arrangement or transformation of a protected work or part thereof, without the authorization of the author or the right holder; (e) the communication to the public by any means or procedure of a protected work or a phonogram, without the authorization of the relevant right holder; (f) the distribution of unauthorized reproductions, total or partial, of a protected work or a phonogram, whether by means of sale, rental, lease, rental with the option to buy, loan or in any other form; (g) the sound fixing, reproduction or communication to the public, by any means or procedure, of an artistic performance without the authorization of the performer or the right holder; (h) the sound fixing, reproduction or retransmission of a broadcast, transmitted by satellite, broadcasting or by wire, cable, fibre optics or any other procedure, without the authorization of the owner; (i) the communication to the public of a broadcast or transmission in a place to which the public can gain access by the payment of an admission fee, or otherwise, for the purposes of consuming or purchasing products or services without the authorization of the relevant right holder; (j) the publication of a protected work with the title changed or removed, with or without being altered; (k) the decodification of programme-carrying signals of any kind transmitted by satellite or any other means of telecommunication, without the authorization of the legitimate distributor; (l) any act that circumvents or attempts to circumvent a technological measure implemented by the author or the holder of the relative right or the holder of a related right to avoid the unauthorized use of any kind of work, phonogram, artistic performance or a broadcast; (m) any act that induces, permits, facilitates or conceals an infringement of any of the exclusive rights pertaining to the authors, copyright holders, performers, phonogram producers or broadcasting organizations; (n) the unauthorized removal or alteration of any electronic information concerning the collective management of copyright or related rights; (o) the unauthorized distribution, marketing, promotion, importation, broadcasting or communication to the public of works, artistic performances, phonographic productions or broadcasts, in the knowledge that the electronic information concerning the collective management of any of those rights has been removed or altered without authorization; (p) the transportation, storage or concealment of reproductions or copies, in any physical medium, of protected works, phonograms, artistic performances or broadcasts, made without the consent of the author or relevant right holder concerned; (q) the collection of financial benefits for the use of protected works, artistic performances, phonograms or broadcasts belonging to broadcasting organizations, or engaging in any other activities proper to a collective management company, without being authorized to do so; (r) the publication of an unpublished work without the consent of the author or relevant right holder; (s) the full or partial translation of a work without the authorization of the author or relevant right holder; (t) the unauthorized distribution of original or legitimate reproductions of a protected work or a phonogram, whether by means of sale, rental, rental with the option to buy, loan or in any other way; and (u) the importation or exportation of the original or reproductions of any protected work for their commercial exploitation, in any type of medium, or of phonograms, without the authorization of the relevant right holder. As regards industrial property, Article 275 of the Criminal Code establishes that the following types of conduct are offences against those rights: (a) Introducing into commerce, selling, putting up for sale, storing or distributing products or services covered by a registered distinctive sign or by an imitation or counterfeit thereof in connection with products or services identical or similar to those protected by the registration; (b) using in commerce a protected trade name, advertising emblem or slogan or sign; (c) introducing into commerce, selling, putting up for sale, storing or distributing products or services covered by a registered distinctive sign, after having totally or partially altered, replaced or removed it; (d) using, putting up for sale, storing or distributing products or services that carry a registered mark that is similar enough to be confused with another registered mark, after a decision has been issued ordering cessation of the use of that mark; (e) manufacturing labels, containers, wrappings, packaging or other similar materials that reproduce or contain the registered sign or an imitation or counterfeit thereof, as well as marketing, storing or possessing such materials; (f) refilling or re-using for any purpose, containers, wrappings or packaging bearing a registered distinctive sign; (g) using in commerce any labels, wrappings, containers and other means of packaging or packing of products or of identifying the services of a trader, or copies, imitations or reproductions thereof that could prove misleading or create confusion as to the origin of the products or services; (h) using or exploiting another person's business secret, as well as any act of marketing, disclosure or improper acquisition of such secrets; (i) revealing to a third party a business secret obtained through one's work, position, post, profession, business relationship or by virtue of a licence of use, after having been advised of the confidential nature of that information; (j) procuring a business secret, by any means, without the permission of the person who keeps it or of its authorized user; (k) manufacturing, processing, marketing, putting up for sale, placing in circulation, storing or possessing products covered by a patent belonging to another person; (l) using a procedure covered by a patent belonging to another person or engaging in any of the actions set out in the preceding subparagraph, in connection with a product obtained directly by that procedure; (m) manufacturing, processing, marketing, putting up for sale, placing in circulation, storing or possessing products which in themselves or in their presentation reproduce a protected industrial design; (n) in connection with a product or service, using in commerce, a false geographical indication or one that could mislead the public as to the origin of that product or service or the identity of the product, the manufacturer or the trader who distributes it; and (o) in connection with a product, using in commerce, a false or misleading appellation of origin, even when the true origin of the product is indicated, a translation of the appellation is used, or is used in conjunction with expressions such as "type", "kind", "manner", "imitation" and the like. Articles 274 and 275 of the Criminal Code prescribe one to four years' imprisonment for persons committing offences against various intellectual property rights and, moreover, specify monetary penalties in the form of a fine to be set by the court, ranging from a minimum of 1,000 quetzales to a maximum of 500,000 quetzales. Furthermore, under Article 358 of the Criminal Code: "Anyone perpetrating an act described as one of unfair competition, shall, pursuant to the provisions in that regard set forth in the Industrial Property Law, incur a fine of 50,00 to 100,000 quetzales, except where the act is one of the industrial property right infringements classified under Article 275 of this Code." In both cases, in criminal proceedings, in addition to the penalties already indicated, the aforementioned provisions of Articles of the Industrial Property Law and 134bis of the Law on Copyright and Related Rights apply. These Articles provide, without distinction as to the right protected, for the possibility of the judgement ordering the confiscation, seizure or destruction of the infringing goods and any materials or accessories used predominantly for committing the offence.

Guatemala's legislation affords suitable and effective protection of intellectual property rights under the following laws: (a) The Law on Copyright and Related Rights, which regulates copyright on all types of works and related rights, (performers, producers of phonograms and broadcasting organizations); (b) The Industrial Property Law, which regulates the corresponding rights for trademarks and other distinctive signs (trade names, advertising material, geographical indications and appellations of origin), patents (including plant varieties, utility models, industrial designs and the suppression of unfair competition, including provisions relating specifically to the protection of undisclosed information. Both laws specifically cover the principle of national treatment, i.e: (a) The Law on Copyright and Related Rights establishes in Article 2 that, in any matters governed by the Law, the nationals of any country enjoy the same rights, legal remedies and means to defend their rights as do Guatemalans. This provision establishes more particularly that works published abroad, as well as performances, phonograms and broadcasts, the right holders of which are aliens not resident in Guatemala, enjoy protection throughout Guatemalan territory, in accordance with the international treaties and agreements adopted and ratified by Guatemala. (b) For its part, the Industrial Property Law, in connection with the intellectual property rights protected by that Law, establishes in Article 3 that the nationals of another State bound to Guatemala by a treaty establishing national treatment for Guatemalans, or persons who have their domicile or real and effective industrial or commercial establishment in that State, shall enjoy treatment no less favourable than that it accorded to Guatemalans with respect to the acquisition, maintenance, protection and exercise of the rights established by the Law or any rights to be established in the future. As to the most-favoured-nation treatment principle, under the Guatemalan legal system the provisions of any international treaty which has been ratified and which do not require the elaboration of specific legislation are fully applicable, binding and enforceable. This is the case with the provisions of Article 4 of the TRIPS Agreement, which does not require any Guatemalan legislation to be elaborated in order for it to be implemented. Consequently, any advantage, favour, privilege, immunity or right accorded by Guatemala to the nationals of any other country shall immediately and unconditionally extend to the nationals of all WTO Members.

The Law on Copyright and Related Rights establishes in Article 15 that all literary, scientific and artistic productions, regardless of the mode or form of expression are regarded as works, provided they constitute an original intellectual creation, and paragraph (a) of the Article specifically mentions computer programs. More specifically, Article 30 of the Law establishes that computer programs are protected under the same terms as literary works. As to databases, under Article 16 works are also deemed to include databases and the like when the selection or arrangement of the content constitutes an original creation. In addition, under Article 35 data compilations or databases, whether in machine-readable or any other form, are regarded as collections of works for the purposes of protection. Such protection does not extend to the data or material contained in the compilations and does not prejudge the copyright on the data or material.

Article 21 of the Law on Copyright and Related Rights establishes that the right holder's economic rights include the authority to authorize or prohibit the distribution to the public of the original or copies of the copyrighted works, whether by sale, rental, hire, loan or in any other manner. This right is provided for all categories of works, without any distinction being drawn. Authorized distribution for sale does not extinguish the right of rental or any other right established in Article 21. With reference to computer programs, Article 31 of that Law prescribes that the right of rental included in Article 21 does not apply to rentals where the computer program itself is not the essential object of the rental. As for the rights of phonogram producers, Article 58 of the Law establishes that they have, inter alia, the exclusive right to authorize or prohibit the distribution of their phonograms or reproductions. The same Article specifies, in the second paragraph, that the right of distribution includes the authority to distribute phonograms either by sale, rental or in any other manner. It adds that, when the distribution is by rental, putting the original or authorized copies of the phonogram on the market does not extinguish the right.

Guatemalan law recognizes authorship rights and economic rights. Authorship rights include the authority to claim authorship of the work and to oppose any distortion, mutilation or other modification of the work that causes injury to the honour and the reputation of the author. Pursuant to Article 19 of the Law on Copyright and Related Rights, a moral right is inalienable and imprescriptible and cannot be renounced; however, Article 20 of the Law specifies that, on the death of the author, only the exercise of the authority referred to in Article 6bis of the Berne Convention is transmitted to his heirs, without any time limit. As far as economic rights are concerned, Title II, Chapter V, of the Law includes rules on the term of protection, specifying that: (a) Generally speaking, economic rights are protected throughout the author's life and for 75 years after his death. In the case of works created by two or more authors, the term shall be reckoned from the death of the last co-author (Article 43); (b) in the case of computer programs and collective works, the term of protection shall be from the first publication of the work, or in the absence thereof, from the making of the work (Article 44); (c) in the case of an anonymous or pseudonymous work (Article 45), the term of protection shall be reckoned from the first publication or, failing publication, from its making. Where the identity of the author is legally verified, the term shall be reckoned in accordance with subparagraph (a); (d) in the case of works consisting of several volumes, serials or periodic deliveries not published in the same year, the period shall be reckoned for each volume, serial or periodic delivery as from the respective publication (Article 46). In all cases, the term shall be reckoned from the first of January of the year following the one in which the act occurred (Article 48). In the case of rights of performers, producers of phonograms and broadcasting organizations, Article 51 of the Law establishes that they are protected for a term of 75 years, in accordance with the following rules: (a) In the case of phonograms and phonographic recordings, from the fixation of the phonogram; (b) in the case of performances not recorded on a phonogram, from the making of the spectacle; and (c) in the case of broadcasts, from the transmission of the broadcast. In all cases, the rights are protected from the start, but the term is reckoned from the first of January of the year following the one in which the acts occurred.

Title IV of the Law on Copyright and Related Rights establishes the cases limiting the rights of authors and holders of related rights. The situations covered by these special cases do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. The limitations established include the cases of free use mentioned in Articles 10 and 10bis of the Berne Convention, which are regulated in Articles 64(a) and 66(a), (b), (c) and (d), and the reproduction or communication of a work necessary for a judicial or administrative proceeding (Articles 63(c) and 64(c)). In addition, the following are exceptions to reproduction and communication rights: (a) The reproduction of a single copy of works by libraries or archives that do not pursue profit-making purposes, where the copy forms part of the permanent collection, with a view to preserving that copy and replacing it in case of need, or to replace a similar copy, in the permanent collection of another library or archive, where the copy has been mislaid, destroyed or rendered unusable, provided that it is not possible to acquire another original in a reasonable time or on reasonable terms; (b) the reproduction of a work of art on permanent display in public places or the outer walls of buildings, provided the reproduction is in an artistic medium different from that used to make the original and provided the name of the author, if known, the title of the work, if any, and the place at which it is located are indicated (Article 64(b)); and (c) the communication is within an exclusively domestic environment, provided there is no economic interest and the communication has not been disseminated (Article 63(a)). As to related rights, limitations on the rights of phonogram producers and broadcasting organizations are set only in the following cases: (a) The making of phonograms and the reception of radio or television broadcasts for demonstration purposes to customers at commercial establishments displaying or selling receivers, reproducers and the like or audio-video carriers containing the works used (Article 70); and (b) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts, which may be kept for a term of up to six months from the date of their making, unless otherwise agreed (Article 71). The latter is an exception authorized under Article 15 of the Rome Convention.

Guatemalan law protects separately each of the categories of related rights, as follows: Performers Pursuant to Article 53 of the Law, performers have the exclusive right to authorize or prohibit the fixation, reproduction, communication to the public by any means, the broadcasting or any other form of use of their performance. Performers of audiovisual works are excepted from this provision. When a phonogram published for commercial purposes is used in any form of public communication, the performers whose performances have been recorded on it shall be entitled to financial compensation. For the purposes of the above, Article 54 specifies that, unless otherwise stipulated: (i) The broadcasting authorization does not entail authorization to permit other broadcasting organizations to rebroadcast the performance; (ii) the broadcasting authorization does not entail authorization for fixation of the performance; (iii) the authorization for broadcasting and fixation of the performance does not entail authorization to reproduce the fixation; and (iv) the authorization for fixation of the performance and reproduction of the fixation does not entail authorization to broadcast the performance from the fixation of the reproductions. Again, Article 57 of the Law recognizes that performers have the personal, inalienable and perpetual right for their name or artistic pseudonym to be linked to their performance and to oppose distortion or mutilation thereof. Producers of phonograms On the basis of Article 58 of the Law, producers of phonograms have the exclusive right to authorize or prohibit the direct or indirect reproduction, distribution and communication to the public or any other form of means of use of their phonograms or their reproductions and to make phonograms available to the public, by any means, in such a manner that members of the public can gain access to them from the place and at the time they choose. The right of distribution includes the authority to distribute phonograms, either by sale, rental or in any other manner. When the distribution is by sale, this right is extinguished as from the first sale made, save for legal exceptions. When the distribution is by rental, putting the original or authorized copies of the phonogram on the market does not extinguish the right. The right of importation, for its part, includes the authority to authorize or prohibit the importation of copies of legally manufactured phonograms and to prevent the importation of copies manufactured without the authorization of the right holder. Article 59 clearly lays down the obligation on anyone performing or causing the public performance, in any form, of a phonogram published for commercial purposes to obtain prior written authorization from the producer and to pay him a fee. Broadcasting organizations Under the terms of Article 62 of the Law, broadcasting organizations enjoy the exclusive right to authorize or prohibit: (i) The fixation of their broadcasts in a physical or material medium, including the fixation of any image or sound or isolated images and sounds in a broadcast; (ii) the reproduction of fixations of their broadcasts by any means that is known or becomes known; (iii) the rebroadcasting of their broadcasts by any means or procedure that is known or becomes known; (iv) the communication to the public of their broadcasts in places to which the public gains access by the paying of an admission fee or places to which the public gains access for the purposes of consuming or purchasing goods or services of any kind. The same Article affords equivalent protection to the established protection for the original organizations or stations which broadcast by cable, fibre optics or a similar process.

Article 7.8 of the Berne Convention establishes that a work's term of protection is the term established by the law of the country where protection is claimed. Since both the TRIPS Agreement and the Berne Convention establish the minimum protection required internationally, Article 18 of the Convention requires the application of such protection to works which have not fallen into the public domain in the country of origin and have not fallen into the public domain of the country where protection is claimed. In this regard, Article 135 of Guatemala's Law on Copyright and Related Rights establishes that the provisions of the Law apply to: (a) National works that have not fallen into the public domain; and (b) foreign works which have not fallen into the public domain in the country of origin, on the understanding that if the term of protection in the country of origin is greater than that under Guatemalan legislation, the term of protection provided for in Guatemalan law would apply, as established in Article 7.8 of the Berne Convention and Article 43, paragraph 3, of the Guatemalan law.

Although Guatemalan law does not contain any express provision in this connection, Article 14.5 of the TRIPS Agreement applies automatically, for as already stated, since the TRIPS Agreement is an international instrument duly approved and ratified by Guatemala, it is fully and automatically operative under the terms established in Article 65 of that Agreement, without any reservation and without need for further elaboration in national legislation.

Article 21 of the Industrial Property Law establishes the grounds for the inadmissibility of a trademark, stipulating in paragraph (a) that it will not be possible to register as a trademark or as an element thereof a sign that is identical or similar to a registered trademark or one applied for beforehand by a third party, for the same or similar goods or services, or for different goods or services when they could create confusion or a risk of association with that trademark. The Article in question covers four instances refusing the registration of a sign: (a) In the case of identical signs for identical goods or services; (b) in the case of identical signs for similar goods or services; (c) in the case of similar signs for identical goods or services; and (d) in the case of similar signs for similar goods. In the first of these instances, Guatemalan practice has been to refuse the registration of a new sign on the grounds of likelihood of confusion among the public. In the remaining instances, the appropriate administrative authority has analysed the degree of confusion that might exist in deciding whether to approve or to refuse the sign. Accordingly, the Industrial Property Law, which entered into force recently, sets out in Article 29 some rules for determining the degree of resemblance between signs, specifying that, in order for a likelihood of confusion to exist, it is not enough for the signs to be similar but also for the goods or services to be of the same kind, thereby referring to the first of the instances mentioned above (paragraph (a)).

The only limitations on the right of the owner of a trademark are set out in Article 36 of the Industrial Property Law, which establishes that the owner of a trademark may not prohibit a third party from using, in connection with lawfully marketed goods or services: (a) His name or address, or those of his establishments; (b) particulars or information about the features of the goods and services, inter alia, those pertaining to quantity, quality, use and geographical origin or price; and (c) particulars or information on availability, use, application or compatibility of his goods or services, especially in connection with spare parts or accessories. These limitations will operate provided the use is made in good faith and does not create confusion about the business origin of the goods or services.