THE IMPORTANCE OF THE TITLE OF WORKS PROTECTED BY COPYRIGHT

By Carlos Enrique Castillo G.

Considering that the work under the study of Copyright is the personal expression of talent, which takes an idea, interprets it and materially translates it into a tangible good, in which part of the author's being is impregnated, which identifies his imprint , and is expressed under parameters of originality, creativity and good faith; Therefore, the name with which it is designated (the work) must have the same characteristics.
The title in terms of Copyright is a term that performs the function of identifying, which may be constituted by a phrase or an expression that indicates the name or attractively presents the theme of a work, whether it is a poem. , a book, a movie, a painting, a song, etc.
Of all the constituent elements of the work, the title is the most recognized, the one that gives the work uniqueness, in a distinctive and individualizing way. It is, in itself, the proper name of the work and the most important link between the work and its author. As the proper name identifies people, the title identifies works. The same elements affect the selection or designation of the title as those for the creation of the work it identifies; Therefore, the author must make use of his creative talent to present his work to the public, in such a way that this (the title) together with that, forms a whole, a unit, the title itself is a piece. determining and essential of the work. The title of a work, when it is original, will be protected as part of it.

To cite a few examples, there is only one book titled: “The Ingenious Gentleman Don Quixote of La Mancha”, which we immediately link to its immortal author, Miguel de Cervantes Saavedra. In such a way that, we would not hesitate to identify as infringing, a title for a work titled “Don Quixote” by Juan Pérez (with the respect that those called Juan Pérez deserve). However, in the case of the film titled “TITANIC”, it would be difficult to avoid the appearance of a book with the same title, or even a documentary, but by an author other than James Cameron, who narrates his version of the shipwreck, since such a title , cannot be considered new in relation to the events that occurred on the ocean liner RMS TITANIC in 1912. It is impossible to acquire exclusive rights with the ability to exclude, over banal, generic and descriptive titles.
That is why the Intellectual Property Law specially protects the title of the work, in articles 6 i), 16 and 89 a). The first of the cited articles incorporates within the moral rights of the author, the “paternity” rights of the author, which allows him to safeguard the integrity of the work (Right to the integrity of the work Art. 6 bis Bern), and authorizes you to oppose any deformation, mutilation, modification or abbreviation of either the work or its title.

For its part, article 16 prohibits the use of the title of a protected work by a third person to designate another work, unless due to its generic or descriptive nature in relation to the content of the work, it constitutes a necessary designation. This is because a banal or inconsequential title will not enjoy special legal protection. In such a way that a title can be considered generic, when it is the general or popular designation to name the genus, when it serves to designate, or is common to all the elements of the same set. And it can be considered descriptive in its field or subject, when it indicates, represents or describes the particular content of the work that it identifies, or defines a particular theme or when it incorporates or represents through adjectives, the concept of its theme. To describe for these purposes is to draw with words.
The second paragraph of the norm in question (Art. 16 of the Intellectual Property Law) contains a categorical prohibition: “No one may use the title of another's work as a means intended to cause confusion in the public, to take undue advantage of its literary or commercial success.” Without a doubt, it must be understood that this prohibition concerns the titles of successful works; Making a comparison, this case can be treated in the same way as well-known or famous brands.
On the other hand, the conduct described above constitutes a special infraction, in the terms of Art. 89 a) because it is considered a violation of the rights of the owner of the work, contained in Art. 89. thus: any act that in any way undermines or harms the moral or economic interests of the author, and in particular: a) “The use, without the consent of the author, of the title of a work that effectively individualizes it, to identify another of the same gender, when there is a danger of confusion between the two.”

In such a way that this last rule prohibits the improper or illegal use of a title of another's work, when this may cause confusion in the public or at least, there may be a danger of confusion between two works, and such illegal use occurs between works of the same genre, and can be established as a copy of the original title. And, furthermore, that it causes impairment or damage to the authorship of the original work, or to the economic rights derived from the commercialization or dissemination of the work, provided that there is no authorization from the author or owner of the original work. . Consequently, in this case it must be considered a general infringement, unlike the special case of famous or notorious titles, as indicated above.
From the perspective of the intentional, criminal action of copying a title of another's work, the Penal Code regarding crimes related to Intellectual Property, typifies the figure of VIOLATION OF COPYRIGHT AND RELATED RIGHTS in article 226 , which provides: “anyone who on a commercial scale reproduces, plagiarizes, distributes wholesale or publicly communicates, in whole or in part, a literary or artistic work or its transformation or an artistic interpretation or execution fixed on any type of support or is communicated through any means, without the authorization of the owners of the corresponding intellectual property rights or their assignees, will be punished with imprisonment of two to four years. …The same penalty will be incurred by anyone who, on a commercial scale, imports, exports or stores copies of said works or productions or performances without the aforementioned authorization…. Commercial scale includes significant willful infringement of copyright and related rights, with the aim of obtaining a commercial advantage or private economic gain, as well as willful infringement that does not have a direct or indirect motivation of economic gain, provided that a significant economic damage greater than an infringement of little value.”
And the aggravated figure of the aforementioned crime provided in article 227, provides: “Anyone who commits any of the conduct described in the previous article, under any of the following circumstances, will be punished with imprisonment of four to six years:
1) Usurping the status of author of a work or part of it or the name of an artist in a performance or performance;
2) Substantially modifying the integrity of the work without authorization from the author; and,
3) If the amount or value of the illicit copy is of special economic importance.”
In conclusion, the work is so important in terms of its theme, development, outcome, script, photography, characters, costumes, makeup, scenery, lighting, sound, director, message or content, musicalization or melody, lyrics, rhythm, harmony, space or dimension, color, shape, texture, etc., as is its title.