Managing Intellectual Property, Feb 2012
Nowadays, it is common for companies to advertise their products through social media networks. These kinds of promotions often employ the names of celebrities and public figures, and this presents a challenge for copyright, in particular, the Mexican reserve right. The names of celebrities are most commonly used by linking their names to a website. Hyperlinks are the most essential quality of Internet, and the most common medium to share self-created or a third party’s content with a broader number of Internet users.
It is not always clear if providing activated hyperlinks is a prosecuted activity under copyright. In Mexico, the law seems to lean towards non-infraction. Providing activated hyperlinks does not imply a reproduction of works, and it does not represent —or at least it would be very difficult to consider— making works available to the public in direct form, by someone who performs an infringing activity. If it is not possible to commit a direct infraction, it would be less probable to happen in an indirect form, since Mexican law does not consider that kind of infraction. Mexican law does not foresee any exception that allows the free use of hyperlinks, as other countries’ laws provide. The exception would be unnecessary in the absence of an indirect responsibility regime.
Under the above, we think that under the Mexican Copyright Law, any provider of user generated content, and in general, any Internet operator, may provide active hyperlinks that allow users, in any form, to perform activities of reproduction, public communication or making copyrighted works available to the general public.
The mere mention of the name of a celebrity or public figure on an advertisement, paying attention to the context it is used on, does not constitute a copyright infraction —including the reserva right—, provided that the advertisement does not imply a relation between the celebrity and the product, a sponsorship of any kind or that we do not pose as the celebrities themselves.