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I. INTRODUCTION
1.1 Statement
The author's economic rights have always been subject to limits in both time and form. Time limits are not just an external restriction; they are essential to maintaining a fair balance between private and public interests. From a legal perspective, and from others as well, temporality is part of the very structure of these rights. The public domain is the natural result of that limitation. It plays a necessary role in completing the system as a whole. This principle is recognized by many constitutions and by international treaties.
On the other hand, there have been formal requirements for copyright1 protection. Their origin and context are historical. In earlier times, protection depended on compliance with specific legal procedures, mainly for reasons of legal certainty. Failure to meet these requirements could cause works to fall into the public domain. In general, the law imposed formalities such as registering works, recording contracts, or depositing copies in libraries. Additional steps were also required to preserve or prove rights, for example by including legal notices. Yet, despite their practical value, these formalities conditioned the protection of works—something undesirable at best, and a violation of human rights at worst. International treaties have consistently sought to avoid such requirements.
The purpose of this study is twofold yet complementary: (a) to examine whether in Mexico there are still works protected under the —possibly unlimited— provisions of previous laws, which may prevent those works from entering the public domain; and (b) to assess whether, in light of constitutional and international developments, the thesis that authors' economic rights could be perpetual can be sustained. To address these questions, the study will analyze whether Mexico has ever had a system of unlimited duration for such rights and whether that position is compatible with the current national and international legal framework.
II. UNLIMITED DURATION OF AUTHORS´ ECONOMIC RIGHTS AND THE PUBLIC DOMAIN
Authors' economic rights cannot last forever. There are economic, cultural, ethical, and legal reasons to support this position. A work cannot be exploited ad infinitum: permanent protection creates a dysfunction within the system and undermines the necessary balance between providing incentives to the author and ensuring collective access to the public domain.
The public domain is a healthy expression of the system. It is fair that society should gain free access to works once authors have already enjoyed a lengthy period of exclusive use. There must be an inherent balance between the author's exclusive right over their works and the interest of humanity —or of other creators in the same or in different fields than the original author— to use them for learning, without the need for authorization or payment.
Rights become fragmented once the author dies and transmits them through multiple generations. This practice, in which copyright is divided among numerous heirs, only creates legal uncertainty. The use of works becomes impossible or at least highly difficult. This problem becomes even more severe if the right were perpetual —that is, if authors' economic rights were understood to last indefinitely without ever expiring.
This risk of generational monopolies directly conflicts with constitutional principles and with Mexico's international commitments, all of which require that authors' economic rights be limited in time.
2.1. Economy, culture, and ethics: why a work cannot be exploited ad infinitum.
The thesis that seeks to establish authors' economic rights as perpetual not only lacks economic justification but is actively contrary to the very purposes that the copyright system—understood as an economic system—is designed to achieve.
"First, the economic incentive to create may be undermined by the imposition of additional costs on subsequent creators wishing to use material from existing works. Subsequent creators may be dissuaded from creating new works incorporating existing works for which the owner cannot be found because they cannot afford the risk of potential liability or even of litigation."2
The multiplicity of heirs or rights holders would aggravate this phenomenon. Perpetuity would mean that, for anyone seeking to use a work, costs would only increase over time. The transactions required to obtain authorization would become progressively more burdensome. Creating art would be impossible without infringing upon someone else's rights. Far from fostering incentives, the direct implication would be a complete prohibition of artistic freedom. The public domain is not merely a legal construct; it represents the cultural and ideological heritage of societies.
This difficulty in accurately identifying rights holders—especially when decades have passed since the work's creation and the rights have gone through multiple hereditary or contractual transfers—creates growing legal uncertainty. As these diffuse links in the chain of ownership accumulate, it becomes increasingly difficult—and in many cases impossible—to locate the legitimate owners. The costs in both time and money would rise with each successive generation.
We reiterate: these growing economic difficulties are equivalent to creative blockages for authors. Copyright law seeks to balance an individual creative incentive with a collective cultural benefit. Article 1 of the Federal Copyright Law ("LFDA") clearly establishes that its purpose is "...the safeguarding and promotion of the Nation's cultural heritage...". The way in which this collective dimension of protection is achieved is precisely through the institution of the public domain.
The public domain fulfills an essential function: it guarantees free access to works that are no longer subject solely to private exploitation. This accessibility enables their educational use, artistic reinterpretation, and cultural preservation. Perpetuity blocks such access, stifling the circulation and renewal of the collective cultural heritage.
The economic benefit of a small group of individuals, at the expense of the collective culture of future generations, would mean unethically sacrificing one of the very two objectives that copyright protection itself seeks to uphold.
III. HISTORICAL EVOLUTION OF ECONOMIC RIGHTS IN MEXICO
The evolution of authors' economic rights in Mexico reflects a complex trajectory in which legal progress, omissions, and reinterpretations coexist. From the earliest laws in the field to contemporary reforms, the temporality of economic rights and their relationship with the public domain have been subject to constant adjustments, which allows us to identify both moments of clarity and periods of ambiguity. It is important to delineate these latter stages, as they gave rise to debates on the possible perpetuity of such rights.
What follows is an analysis of the different Mexican provisions on economic rights throughout the years.
3.1. Protection before 1821: background in New Spain
In New Spain, up until 1821, the printing of books operated under a system of prior censorship and printing privileges granted by the Crown and the Catholic Church, rather than under any notion of the author's economic rights.
The right to print or reprint works was not conceived as a right of the author, but rather as a privilege granted by the civil or ecclesiastical authorities. Publication was subject to prior censorship3 , in which moral, religious, and ideological criteria were evaluated, in addition to the technical aspects of printing itself. Once that filter was passed, a printing privilege was granted. This privilege in no way constituted a right in favor of the author, and it was certainly not perpetual.
"This cautious policy lasted for three hundred years, and it can be said that its starting point in Spain was the Pragmática issued by the Catholic Monarchs on July 8, 1502, in the city of Toledo, addressed to printers and booksellers. In it, for the first time, the obligation was established to submit manuscripts to prior censorship: before a book could be commercialized, a printing license was required. The 1502 Pragmática also set out the division of territory and the institutions involved in censorship, assigning this role to religious authorities —the Archbishop and the Bishop— as well as to civil authorities —the Presidents of the Audiencias."4
It was not until June 10, 1813, that an explicit recognition of copyright was established. With the aim that "such fruits of intellectual labor should not one day be buried in oblivion to the detriment of national learning and literature"5, the Spanish General and Extraordinary Courts decreed the Rules to Preserve Writers' Property in Their Works. This brief decree granted authors the exclusive right to print their writings during their lifetime, and extended that right for ten years solely to their heirs. Once those terms expired, the works entered the public domain.
It is clear that, from its very conception in New Spain, authors' economic rights were never perpetual. On the contrary, from their first incorporation into our legal system, they have always been limited for the sake of collective benefit.
3.2. Protection regime in early Independent Mexico (1821-1857)
During the transition to an independent Mexico, the field was reorganized through instruments on freedom of the press: first, the Supplementary Regulation on Freedom of the Press of December 15, 18216 , issued by the Sovereign Provisional Governing Junta, which set out the foundations and procedures for the exercise of and liability for printed materials; and later, the Regulation on Freedom of the Press to Be Observed in the Mexican Republic (1828)7 , which consolidated this framework at the national level. Both regulations governed the circulation of publications and the liability arising from them, but not the author's economic rights.
Subsequently, on December 3, 1846, José Mariano Salas issued a Decree on Literary Property8 . This document represents the first genuine conceptualization within the Mexican legal system of "copyright" in a form similar to how we understand it today.
Said decree required that the rights acquired by each author, publisher, translator, or artist for their "valuable" occupations be clearly established, and to that effect it followed the line of the 1813 decree9 by setting rules on how works would pass into the public domain. It provided that the right to "literary property"10 would last for the author's lifetime plus 30 years for their heirs. Likewise, this document laid the foundations for the tension that would later arise in Mexico between the rights granted to authors and the formalities required to enforce them. Article 14 stipulated that, in order to acquire literary or artistic property, "the author shall deposit two copies of the work with the Ministry of Public Instruction".
Taken together, these precedents show that from its origins in New Spain and during the early years of independent Mexico, copyright protection was always understood as a temporary, limited, and conditioned privilege—never as a perpetual right. Temporality has been a structural feature from the outset, as the aim has consistently been for the individual's creative work to benefit the community. It is worth briefly noting that neither the Ley Lares (April 25, 1853), with its rigid regime of suppression, nor the Reglamento Lafragua (December 28, 1855), with its greater openness to freedom of expression, granted authors perpetual rights in any case.
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Footnotes
1. Translation Footnote: In this translation, the term "copyright" is used as the most common rendering of the Mexican concept of "derecho de autor." It should be noted, however, that the Mexican system follows the droit d'auteur tradition, which differs from the AngloAmerican copyright system. In Mexico, copyright in the strict sense (the right to make copies) is only one of several forms of author's economic rights through which a work may be commercially exploited. Accordingly, whenever "copyright" is used here, it refers to the Mexican legal framework, which carries its own distinct nuances.
2. Duke Center for the Study of the Public Domain, Analysis and Proposal Submission to the Copyright Office: Proposal on Orphan Works, March of 2005, p. 2, available at: https://web.law.duke.edu/cspd/pdf/cspdproposal.pdf
3. Andrea Mariel Pérez González, "La censura previa y la formación del juicio crı́ tico lector: la evolución de un paratexto," [Prior Censorship and the Formation of the Critical Reader's Judgment: The Evolution of a Paratext], Bibliographica 1, no. 2 (05-09- 2018). Available at: https://doi.org/10.22201/iib.bibliographica.2018.2.27
4. Marı́a del Carmen Utrera Bonet, "LA PRAGMÁTICA DEL 1558 SOBRE IMPRESIÓN Y CIRCULACIÓN DE LIBROS EN CASTILLA A TRAVÉS DE LOS FONDOS DE LA BIBLIOTECA DE LA UNIVERSIDAD DE SEVILLA". [The 1558 Pragmatic Sanction on the Printing and Circulation of Books in Castile through the Holdings of the Library of the University of Seville] Available at: https://www.ucm.es/data/cont/docs/446-2013-11-29-j-2013_maq_utrera%20bonet.pdf
5. Rangel Medina, D. (1992). Derecho de la propiedad industrial e intelectual (2ª ed.) [Reproducción electrónica] [Law of Industrial and Intellectual Property]. Universidad Nacional Autónoma de México, Instituto de Investigaciones Jurıdicas ́ . Retrieved from Biblioteca Jurıdica ́ Virtual del Instituto de Investigaciones Jurı́dicas de la UNAM. Available at: https://archivos.juridicas.unam.mx/www/bjv/libros/4/1912/4.pdf
6. Available at the following: https://www.memoriapoliticademexico.org/Textos/1Independencia/1821DRL.html
7. Available at the following:chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.coljal.mx/wp-content/uploads/2021/06/18.-Reglamento-de-Libertad-de-Imprenta.pdf
8. Available at the following: https://digital.utsa.edu/digital/collection/p15125coll6/id/49270
9. Through which the aforementioned Rules to Preserve Writers' Property in Their Works was issued
10. The first two articles of the document define this right as "...the power to publish it or to prevent others from doing so".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
