08 / 06 / 2021

Opinion column by Álvaro Arévalo, partner of Villaseca Abogados, leader of Copyright area, originally published on El Mercurio Legal.

For many years there has been a debate about the payment of audiovisual rights by hotels. What about the televisions which are inside the rooms? Should copyright holders be paid for in-room shows?

Well, recently the Supreme Court has shed light on this long-standing dispute, as a result of the Egeda collective management society, which groups audiovisual producers, an important ruling was obtained that obliges the Sociedad Hotelera Terrasur S.A. to pay a general fee for the televisions available in each room.

With this, it is reaffirmed the thesis that maintains that in this type of establishments public communication is carried out, by offering the guest an experience that goes beyond accommodation, and includes various services, including access to watch various programs, movies and series on different television channels. For this commercial reason, the limitation known as “intimate or family use”, which exempts people from paying these rights, would not apply.

This current is opposed to the vision that a guest, when spending one or more nights in a hotel, changes his address during those days, and that what he decides to see or not see in his room falls within the sphere of his privacy, being able to thereby be covered by one of the exceptions established by the Intellectual Property Law No. 17,336.

Although there have been rulings in both directions, after this recent Supreme Court ruling, although it has only effect between the parties in conflict, the first guideline is consolidated, at least in the short term.

However, there is a further issue that is not well resolved and has to do with legislation that is clearly to the debit. Although it allows the creation of collective management societies —which is good because it favors competition—, it does not establish limits that are necessary, such as a framework and sections for setting rates. Companies can set a charge at their discretion and the only mechanism to resolve discrepancies would be through arbitration, which, given its conditions, is not used in practice. This is especially complex in times of pandemic, in which the hotel sector, as well as other sectors, have been severely hit by the covid19.

On the other hand, something that makes the coexistence between the hotel industry and the holders of copyright and related rights complex is the lack of order that exists in the payment of rights in this matter, because there are various collective management societies that apparently

are overlap. For example, it may happen that the same song that appears in a musical work and is also part of the soundtrack of a movie.

Added to this is the lack of a “single window or row” that leads and subsequently distributes the payment of each of these rights, regardless of the multiplicity of management companies, avoiding an overlap that results in a “double payment”.

It is necessary to review and modify the section of the Intellectual Property Law that deals with this aspect, establishing less discretion, setting sections for the collection of fees and giving the contractor of a service, in this case to a hotel, the certainty that it is paying what is due.