1 October 2010CopyrightAlysson Oikawa

IP protection in Brazil: a better balance for the digital age

2008 marked the 10th anniversary of the current regime for the protection of works of authorship in Brazil. On February 19, 1998, the Brazilian government published Laws No. 9610 and No. 9609. The first consolidated the legislation on copyright and neighbouring rights, while the second established specific IP protection for computer software.

The anniversary stimulated new measures and debates, especially on issues related to the prosecution of violations and the need for legal responses to the challenges of the digital age.

The National Council against Piracy and Intellectual Property Crimes (CNPC) was created on October 2004, as part of the Brazilian Ministry of Justice, and comprises government and civil bodies representing sectors affected by piracy.

The CNPC is responsible for the development of strategies for combating violations of IP rights and associated tax evasion. In addition to integrated enforcement measures, which have resulted in a record apprehension of counterfeits, the CNPC has also implemented initiatives of a normative, institutional and educational nature.

Education is crucial to inculcate a culture of IP awareness among the Brazilian public, particularly in view of recent studies indicating that 75 percent of Brazilians tolerate the consumption of various kinds of pirated products.As to the need for altering local norms, it is worth noting the discussions put forward by the Brazilian Ministry of Culture through the National Forum on Copyright (FNDA).

Throughout 2008 and 2009, the forum held more than 80 meetings and seminars with various industry and business sectors. Around 10,000 people participated in the discussions, which were transmitted over the Internet. In November 2009, with the conclusion of the FNDA, the Ministry of Culture began preparing a draft bill to reform Brazilian copyright law.

The draft was published in June 2010 for public consultation until the end of August 2010. The Ministry of Culture is trying to make the consultation as accessible as possible and has set up a website that enables participation through collaborative construction (www.cultura.gov.br/consultadireitoautoral/).

At the launch of the FNDA in December 2007, the then Minister of Culture Gilberto Gil gave a speech in which he called attention to issues such as the legal equivalence between commercial and private copying, the fragility endured by authors on imposed transfer and licence agreements, and the strengthening of the government’s role in the sector.

These topics represent some of the most important challenges to the current copyright dilemma, which at heart is linked to the relentless search for a balance between the exclusive privileges of content owners and the possibilities of public use.

The quest for equilibrium must take into consideration essential principles determined by the Brazilian federal constitution. Among other fundamental rights and guarantees found in Article 5, items XXVII and XXVIII prescribe the protection of copyright and neighbouring rights, reserving exclusive prerogatives to use, publish, reproduce and monitor.

But copyright protection is often confronted with other fundamental safeguards, notably the right of access to information and freedom of expression. The Brazilian legislature tried to resolve the conflict through the establishment of uses that do not constitute violations.

Such uses include reproduction in the press, the copying of small portions for private use and the citation of passages for purposes of study or criticism. Since they are qualified as specific and closed limitations, it is not possible to extend their application beyond what has been exhaustively determined by law.

One of the most debatable points about copyright reform is permission for private use. Current law does not distinguish between the professional counterfeiter and the home copyist. Except in the cases provided as copyright limitations, express prior authorisation is required for any use of works that have not yet fallen into the public domain.

Despite the lack of commercial intent, current legislation qualifies private acts such as the transfer of content between personal digital devices as violations. The draft bill permits at least one reproduction of legitimately acquired works for private and non-commercial use, without requiring further remuneration.

Other proposed copyright limitations include copies made to ensure the portability or interoperability of digital files, and those made for inclusion in portfolios or resumes. Fair use may not be hindered or prevented by technological devices or measures.

"The quest for equilibrium must take into consideration essential principles determined by the Brazilian federal constitution."

The Ministry of Culture argues that the new copyright limitations follow the principles defined by the main international agreements, such as the Berne and Rome Conventions and the TRIPS Agreement, to which Brazil is a signatory. Those who advocate for more legitimate private uses argue that current legislation gives excessive power to copyright holders.

Such disparity stifles important forms of expression and dissemination of knowledge due to the fear of accountability in the civil and criminal spheres (the so-called ‘chilling effect’). However, the liberalisation of uses may come at the expense of historical recognition.

At a time of significant progress in the fight against piracy, the discussion should be focused on the establishment of more efficient alternatives to remunerated or free licences, instead of admitting other forms of unpaid uses. At least in part, the draft bill is a sensible approach to the problem. The proposed Article 52-B creates a government scheme for the grant of non-voluntary licences to meet the fundamental right of access to information and other public interests.

Another controversial issue relates to demands for greater safeguards to individual creators in negotiating agreements. Law No. 9610 allows the total or partial transfer of economic rights, subject to a general narrow interpretation of the agreement to the benefit of the author.

Even so, members of artistic and cultural categories have been showing dissatisfaction with situations ranging from the lack of clarity in negotiations to the disparity between the actual remuneration received and the reality of the market.

No doubt an author should be afforded special protection as the individual responsible for creating the work. However, demands for changes in the configuration of assignment and licensing agreements, including suggestions for government intervention, should be carefully evaluated to avoid risks to the legal predictability necessary for all parties.

For instance, the draft bill brings important changes to rules for works for hire. In the absence of other arrangements, the initial ownership of economic rights shall belong to the employer, public entity or other party that commissioned the work, exclusively for the purposes that constitute the scope of the commission agreement or the employment relationship.

The discussions fostered by the 10th anniversary of the Brazilian Copyright Law represent an historic opportunity to correct possible distortions in the current social and economic context. Foreign copyright holders doing business in Brazil should closely follow the development of the proposed reform.

Measures recently implemented by the Brazilian government set the protection of copyright as a strategic policy, valuing domestic cultural production and heritage. It is expected that the current debates will result in concrete solutions to possible abuses and reaffirm copyright’s fundamental role: to contribute to economic, cultural and technological developments, always taking social interest into account.

Alysson H. Oikawa is a Brazilian copyright and trademark attorney, and an associate at Bhering Advogados. He can be contacted at: bhe@bheringadvogados.com.br

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