INTA Roundtable Explores Drafting of New Chilean Constitution

Published: March 31, 2021

Chile is preparing to hold an election of 155 people who will redraft its Constitution. In that context, INTA hosted a roundtable on March 9 titled “The Constituent Process and the Implications for Intellectual Property.”

Voters will return to the ballot boxes on April 11 to choose the 155 people who will make up the convention, which will draw up the new constitution.

INTA member Rodrigo Puchi, President of the Chilean Association of Intellectual Property (Beuchat, Barros & Pfenniger, Chile), moderated the panel. Speakers included Carolina Contreras (attorney and Executive Director of Fundación Pro Bono Chile, and a candidate to be part of the Constituent Process Chile), Estefanía Esparza (attorney, professor at the Universidad de la Frontera, Chile); Salvador Millaleo (attorney and sociologist, professor at the Universidad de Chile, Chile); and Juan Pablo Rodríguez (attorney, Executive Director of Fundación Piensa, and candidate to be part of the Constituent Process).

INTA identified and invited the speakers and moderator for this event. The issue is of great importance to the Association, which will be involved going forward, monitoring the drafting of the constitution and ensuring IP is prioritized, beginning with this event, and with more events to come.

Providing background, Ms. Esparza explained that Chile is facing a historic process that arose from public protest calling for constitutional change. She discussed citizen participation in the constituent process, highlighting that an equal number of elected women and men will draft the constitutional text—marking the world’s first constitution to be drawn up with gender parity.

Ms. Esparza also noted the constitutional evolution of the regulation of intellectual property (IP). The 1833 Constitution first protected it, and it has been protected in the subsequent constitutions in 1925 and the current one adopted in 1980.

According to Mr. Rodríguez, there is currently public demand for equal opportunities, arguing that it will have to be reflected in the new constitution. Chile is facing an opportunity to bring decision-making closer to the people, he said, which will allow better decisions and greater decentralization of power in the country.

Ms. Contreras pointed out that not everything can be enshrined in the constitution; some things should be regulated in different ways. That is why the drafters must establish clearly what rights to guarantee, she said. She believes that IP rights should be enshrined in the constitution. “We survived the pandemic thanks to IP rights, represented in cultural and audiovisual works,” she said. Inventions and technology are important for social development, and innovation and development are essential for economic development, she said.

Ms. Contreras also pointed out the cardinal importance of modernizing judicial power, as the new constitution would have to be embrace a new economic approach based on knowledge and not commodities, which will require specialized courts to deal with sophisticated matters.

The creative process and innovation are important when considering IP in preparing the new constitution, said Mr. Millaleo. In his view, creativity and innovation must be supported, defended, and considered foundational for protecting IP. He also stressed that the conversation about a new constitution has a global context.

The discussion also covered the role that brands play in the functioning of the market and their possible protection under the new constitution. Mr. Millaleo highlighted the importance of protecting indigenous culture and especially brands that include Mapuche and other indigenous languages.

Speakers also discussed the public domain and the regulation of IP as a fundamental right. Ms. Esparza set out that the constitution should expressly contemplate the limits of public domain in order to equalize interests.

On April 10 and 11, 2021, elections will be held to choose the Constituent Convention whose mission will be to draft a new constitution. They will have nine months (extendable for more time only once) to present the new constitutional text. Finally, in mid-2022, the country will hold a new exit referendum to approve or reject the new constitution.

INTA’s Latin America and the Caribbean Representative Office, based in Santiago, Chile, represents the Association’s members across the region. Working in collaboration with staff at INTA’s headquarters in New York City, the Latin America and the Caribbean Representative Office leads the Association’s policy, membership, marketing, and communications initiatives throughout this region. To learn more about INTA’s activities in Latin America and the Caribbean, please contact INTA Chief Representative Officer of the Latin America and the Caribbean Office José Luis Londoño.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. 

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