This article is written by Nishtha Garhwal, from Alliance School of Law, Bangalore. The article attempts to analyse the laws related to copyright violation in Brazil and how it becomes problematic at times.
The primary sources of law in the legal system of Brazil are the written rules. The secondary sources of law include judicial precedents, supplementary laws, decrees etc. However, the law that is ranked the highest in the Federative Republic of Brazil is the Constitution of Brazil.
The role of secondary sources of law comes into the picture when the law in Brazil is silent on some issues. Whenever there is any conflict, the highest-ranked law prevails. Copyright is provided as a fundamental right in the Constitution of Brazil. Any international treaty or rule can be enforced in Brazil only if it is internalized and incorporated into the legal system of Brazil by local law.
The treaties that are enforceable and applicable to copyright litigation in Brazil include the WIPO Berne Convention for the Protection of Literary and Artistic Works,1971 (Berne Convention), WIPO Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations,1961 (Rome Convention), the Inter-American Convention on the Rights of the Author in Literary, Scientific and Artistic Work (Washington Convention), the treaty on the International Registration of Audiovisual Works and the Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms (Phonogram Convention).
An overview of Copyright Law in Brazil
The written rules that are applicable to copyright in Brazil include Law No. 9610/1998 which is known as the Brazilian Copyright Law and Law No. 13,105/2015 which is the Brazilian Civil Procedure Code containing the civil proceeding rules. The Brazilian Copyright Law provides certain rules regarding copyright.
In Brazil, a person alleged of copyright infringement can be sued both in a civil and a criminal case. Decree-Law No. 2,848/1940 provides copyright infringement as criminal conduct and the general rules of criminal procedure are contained in Decree-Law No. 3,689/1941.
Copyright law in Brazil irrespective of the medium in which creative work is expressed provides protection to it provided the work is an original creation. Article 29 of the Brazilian Copyright Law provides a list of things that can be claimed for copyright infringement along with examples. However, this list is not exhaustive in nature.
Notable provisions in copyright legislation in Brazil
The Brazilian Copyright Law regulates the issues of copyright in Brazil. As per this law, the exclusive right to enjoy, use or dispose of the protected work is with the author and also has the right to keep the work unpublished. In case of an author’s death, their successors get entitled to exercise moral rights which means that they get the right to get their names linked to the work and to maintain the work’s integrity.
If this moral right is exercised by someone other than the author himself or his successor, then it is considered an infringement. Thus, if a protected work is used without authorisation, it is copyright infringement. As per the Brazilian Copyright Law, if anyone edits a work or partially or fully reproduces a work without authorisation, it is deemed to be an infringement.
The Brazilian Copyright Law also gives the author of a work a right to withdraw an already authorised work from circulation or to suspend its utilisation if the circulation or utilisation would cause harm to the author’s reputation.
A third party will be held liable jointly for infringement along with the actual infringer if it is engaged in selling or distributing a reproduced work without authorisation for the purpose of gaining benefit from it. If a director or agent without authorisation characterises a protected works’ public performance, then he shall be held liable jointly along with the actual infringer.
An exception to copyright infringement is ‘Fair use’ which can be availed by a person accused of copyright infringement. As per the Brazilian copyright law, a list of situations is mentioned under which an accused will be allowed to avail the doctrine of ‘fair use’. If a person’s use of work does not fall into any of these authorisations mentioned under the law, it will be considered as copyright infringement and third parties will be held liable.
While deciding cases, courts need to consider whether the work was used for educational or commercial purposes. For instance, a book containing 300 pages is photocopied by a professor and given to the students to study, it will come under the purview of ‘fair use’. However, if the same book containing 300 pages is photocopied by a professor and sold to students at a lower cost than the original book, it will not come under the purview of ‘fair use’ since the work was used for a commercial purpose.
Software law, that is, Law No. 9609/1998 protects software in Brazil. However, in the places where the software law is silent, the Brazilian Copyright Law is applicable.
In cases where the infringement of a copyright-protected work is done in the national territory of Brazil by a foreign-owned or operated website, the legislation relating to copyright in Brazil can be applied by local courts of competent jurisdiction to make a decision.
As per Article 9 of the Copyright law, if an author makes copies of a work of art, those copies are entitled to the same protection as given to the original work. Article 93 of the copyright law recognises the ‘neighbouring rights’ for phonogram producers and Article 95 for broadcasting organisations. This means that an exclusive right to restrict or allow the reproduction and distribution of a work to the public either for consideration or for free of cost is available to the phonogram producers. Similarly, such an exclusive right is available to broadcasting organisations.
Article 7 of the copyright law protects architectural works under copyright. This article says that intellectual works are the creations of the spirit and thus, they need to be carefully protected as they are considered as an extension of an author’s personality. A list of protected intellectual works that are non-exhaustive in nature is given under Article 7 of the Act.
Protection of the title is inclusive under the protection of intellectual works when it is related to a specific intellectual work provided it is an original creation. This means that it can not be confused with a prior work’s title of the same time. As per Article 27, waivement or assignment of moral rights is not permitted. Therefore, any legal entity is not entitled to its own moral rights even if such an entity was the initial owner of the work.
Things not protected under the Brazilian Copyright Law
The things that don’t result in copyright infringement in Brazil as per the Brazilian Copyright Law are as follows:
- Reproduction of any informative article or news which has already been published in a newspaper provided it mentions the name of the author or contains his signature.
- Reproduction of any speech delivered at a public event.
- Non-commercial reproduction of some literary, artistic or scientific work for the sole purpose of utilisation by the visually impaired people.
- Reproduction of any quotation or passages in books, magazines, newspapers or any other source for the purpose of study provided the name of the author and the source of the work is mentioned.
- Reproduction of lectures given at educational institutions into notes by those to whom the lecture is delivered.
- Any theatrical or musical performance of any work taking place for teaching purposes in educational institutions or in the privacy of home provided it is done with a non-profit motive.
- The utilisation of any literary or artistic work in order to develop evidence for judicial proceedings.
- Representation of any work present at a public place permanently in the form of paintings, drawings or photographs.
Period of copyright protection
As per Law No. 9610/1998, for a period of 70 years from the first day of an author’s death, copyright protection lasts. If a work has joint authorship and it is indivisible, then the copyright protection period of 70 years begins from the date of the last author’s death. In the case of an anonymous, photographic or audiovisual work, the period of copyright protection begins from the first day of the year that follows the publication.
In the case of software where Law No.9609/1998 is applicable, a protection period of 50 years is provided which starts from the first day of the year that follows the publication or creation in case there is no publication.
Provisions relating to copyright notice and deposit
According to the law in Brazil, the copyright notice is not a mandatory legal requirement and thus, even if the copyright notice is not displayed, there are no consequences of it. In addition to this, for the purpose of copyright, a deposit is not a mandatory requirement. The National Library is the place to deposit all the literary works. However, the purpose behind it is to control the literary heritage of Brazil and to preserve its national culture and language as per Law No. 10,994 of 14 December 2004. Foreign works that are published in Brazil are also covered under this law.
A fine exceeding 100 times the current price of work can be imposed in case the work is not deposited with the National Library or a sufficient number of samples can be seized required to fulfil the legal deposit.
Who owns a copyright protected work
The original creator of a work is deemed to have initial ownership of it as per Article 11 of the Brazilian copyright law. In a general scenario, initial ownership and authorship are the same things. However, there are two exceptions to this, namely, the creation of software through collective work or employment and work being created by an initiative and responsibility taken by an individual or a legal entity that does the work of publishing it under its name or mark which is created by the contribution of different authors leading to an autonomous creation.
Under Brazilian law, the concept of commissioned works being made in the course of employment does not exist. An exception to this notion is software. In case a software has been developed by an employee or a commissioned person under a contractual obligation, that employee or commissioned person will become the exclusive owner of the economic rights to the work as per Section 4 of the Software law.
A hiring relationship cannot lead to the automatic assignment of copyright if there has been no express agreement in written format except software. Article 15 of the copyright law is about co-authorship.
It must be noted that only the economic rights can be assigned to a third party and that too in writing. The moral rights of an author cannot be assigned to a third party. In case rights are transferred in writing, however, the duration is not stipulated in the contract, five years is the term for the expiry of the assigned rights as per Article 49 of the Copyright law.
Under Brazilian copyright law, licensing of rights is not mandatory. However, if rights are assigned or licensed, they can be recorded before competent authorities, for instance, the National Library. Depending upon the nature of work, there are different authorities responsible for recording it.
Although not compulsory, a contract for the transfer of rights can be registered before the Registry of Title and Deeds and this serves as useful evidence.
Performance rights under Copyright
A right to permit or restrict the following acts is available to the performers:
- Their interpretation’s fixation.
- Renting their interpretations, its public performance or reproduction.
- Their interpretations being made available to the public in such a way that they can access it at the time and place of their choice.
- Any other way in which their interpretation can be utilised.
Digital exploitation of copyright protected works
There are certain provisions in relation to digital exploitation of works in the Brazilian copyright law. The definition of ‘Reproduction’ is given under Article 5 of the copyright law. As per this, if through the use of electronics or any other source that may come up in future, one or more copies of a work is made in any temporary or permanent form of storage, it will be considered as reproduction and thus, infringement of the copyright-protected work.
Prior authorisation is required before work is distributed for the purpose of offering work or its production through the application of optic fibre, cable, electronic waves or any other system such that it enables the user to select and have access to a work by making payment as per Article 29 of the copyright law.
According to Article 184 of the Brazilian Criminal law, it is a crime to make copyright protected work available to the public through partial or total reproduction without prior authorisation by electronic means for the purpose of obtaining profit out of it either directly or indirectly. Imprisonment of 2-4 years is imposed by the law along with a fine in such a case.
Although the concept of digital exploitation is dealt with in some way by Article 184 of the Brazilian Criminal law, there is a lack of provisions and proper legislation in order to deal with the digital exploitation of copyright-protected work.
Who enforces copyright in Brazil
Brazil doesn’t have a central agency to enforce copyright regulations. The primary governing body that enforces copyright statutes and legislations in Brazil is the Ministry of Culture. It is constituted of the following:
- Three Board of Directors, responsible for implementing and evaluating copyright-related policies in Brazil.
- Three independent Bodies namely the National Agency of Film (ANCINE), the Brazilian Museums Institution (IBRAM) and the National Institute of Historic and Artistic Patrimony Heritage (IPHAN)
- Five Foundations which have the National Library Foundation. These foundations are responsible for the registration of works protected by copyright.
- Six Secretariats.
- Local representations.
It must be noted that the office of Public Prosecutor also enforces copyright in Brazil. In addition to this, there are Police Precincts that specialise in matters relating to intellectual property rights are responsible to investigate in case copyright infringement is involved.
Registration of copyright in Brazil
Since the protection of copyright in Brazil is based on a declarative system, therefore, registration of copyright is not compulsory in order to have copyright protection. Copyright is protected in Brazil irrespective of whether it is registered or not as per Article 18 of Law No. 9610/1998. However, registration may serve the purpose of mere declaration. It can be used to produce evidence in a Court of law in the case of infringement.
Depending on the nature of the work, it can be registered in the following manner:
- Literary works can be registered with ‘Biblioteca Nacional’ (National Library).
- Musical works can be registered with ‘Escola de Musica’ (School of Music).
- Works related to art and sculptures can be registered with ‘Escola de Belas Artes da Universidade Federal do Rio de Janeiro’ (School of Beaux-Art of the Federal University of Rio de Janeiro).
- Works related to audio-visual can be registered with ‘Institute Nacional do Cinema’ (Institute of Cinema).
- Architecture, engineering, and agronomy related artistic works can be registered with ‘Conselho Federal de Engenharia, Arquitetura, Agronomia’ (Federal Counsel of Engineering, Architecture and Agronomy).
However, now works of all nature and not just the literary ones are being accepted by the National Library. It is regarded as the most suitable to register works of all kinds and it is usually advised to make an attempt to register works with it first. A comprehensive form has to be filled in by an author along with his or her qualifications including a copy of the work and other related documents in order to register the work with the National Library.
A fee of an estimated 80 Brazilian reais per work is charged by the National Library in order to register copyright-protected work. The other entities also have similar fee requirements.
The Brazilian Copyright Law and its role in restriction on efficiency of human right to seek education
In today’s era of globalisation and technology growing at such a fast pace, access to any artistic, scientific or literary work for the purpose of the study is much easier. Now, it is possible to access works from all over the world and thus it becomes possible to disseminate knowledge and materials for the purpose of education.
Article 26 of the Universal Declaration of Human Rights says that the Right to Education is available to everyone. In order to provide education, it becomes essential to have access to the various textual, musical or audio-visual works. Based on the principles framed in the Berne Convention of 1886, the Brazilian copyright law was drafted and this law is known to be one of the most restrictive copyright laws in the world.
As per this law, anybody is exempted from producing a full copy of another person’s work without express and prior approval from the copyright holder. The larger the extent of protection, the less access people have to work because they will always require authorisation from the copyright holder and therefore, it is a major challenge towards the goal of implementing the right to education.
Copyright litigation in Brazil
The state courts have jurisdiction over the copyright laws in Brazil. However, the federal courts will have jurisdiction over the copyright cases if one of the parties involved is a public company or a federal entity. While handling copyright litigation, the lawyers who are enrolled with the Brazilian Bar Association (BAR) can only represent parties before courts. However, if the amount that is in discussion is twenty times the minimum wage in Brazil, that is, approximately $300, then parties can also represent themselves in the small claim courts.
Usually, in the legal system of Brazil, the precedents are not binding and there is no obligation on the judges to make a judgement in consonance with the precedent on a similar issue. Even though this is the case, still precedents are taken into consideration by the judges while giving a judgement. The judges in a copyright case can even take the foreign decisions on a similar issue into consideration while giving a judgement but only to the extent that the applied foreign law is in congruence with the Brazilian law.
The parties do not have the freedom to choose a different language for the judicial proceedings than Portuguese and thus, Portuguese must be the language of every judicial proceeding. However, if it had been agreed beforehand by the parties to a dispute to go for arbitration, then the parties have the freedom to choose the language of the arbitration proceeding.
Defences available to an alleged infringer
The defendant can take certain defences when sued for copyright infringement. Under Brazilian law, three years is the statute of limitation for bringing an action for copyright infringement in case of extra-contractual damages. However, in cases where the action has a contract related claim, the statute of limitation is 10 years. The defendant can take the defence that the author of the work claiming infringement failed to bring an action within the limitation period.
The defendant can attempt to prove that the work was used by him before the author, or in other words, the defendant can show his prior use. In addition to this, the defendant can also try to show that the copyright associated with the work is not valid because of not meeting the legal requirements and thus, is not entitled to protection under the Brazilian Copyright Law.
Remedies available in an action for copyright infringement
In the case of copyright infringement, the monetary remedy is available to the copyright holder, that is, a person may request the court to order the infringer to indemnify him for moral damages. An assumption of damages is always there in the case of infringement of moral rights. As per Article 103 of Law No.9610/1998, the amount received from the sale of any protected work must be paid by the infringer to the copyright holder. An infringer must pay a price equivalent to three thousand copies of the work in case the amount is not accessible.
As per Article 102 of the Brazilian copyright law, it can be requested by the copyright holder to seize all the infringing goods.
A permanent injunction can also be sought by the copyright holder that usually results in an order to cease the infringement and dissemination of copyright work permanently.
Orkut Case in Brazil
Orkut was launched in 2004 by the largest search engine, that is, Google. Orkut is a social networking site. Though it was unsuccessful in America, the site gained immense popularity in Brazil where almost 70% of the internet users were Orkut users. In a while, Google had to face allegations related to copyright-infringing materials.
The highest appellate court in Brazil, that is, the Superior Tribunal de Justice delivered a landmark judgement in this case. The Court in this case gave the decision that if a third party commits any copyright infringement, then a social networking site or content providers cannot be held responsible if they do not achieve any profit out of it. Therefore, Orkut was not held liable for the links directing to some external pages posted by users containing copyright-infringing materials.
Reform of Copyright Law in Brazil
The legislative Bill no. 3,133/2012 was introduced on 7th February 2012 in the Chamber of Deputies. This bill intended to make some changes to the Brazilian copyright law. It sought to establish that the reproduction of intellectual work and its sale or distribution for study or knowledge purposes as not constituting copyright infringement. Though this Bill had fewer chances of survival, it forced the authorities to consider the reform of Law No. 9610/1998.
Brazilian law allows both criminal as well as civil cases to be filed in case of copyright infringement. However, in the case of a civil case related to copyright, a single judge gives the judgement and in the case of a criminal case related to copyright, a panel of judges give the ruling. The evidence legally obtained for a civil case is also admissible in a criminal proceeding and the evidence obtained in a criminal case is also admissible in a civil proceeding. The copyright dispute of civil nature is decided by state courts while the one of civil nature is decided by the state criminal courts.
Two years is the average time taken in order to reach a first instance decision and another two years is an average time taken in order to reach a second instance decision. It may take 5 years for a copyright case to be concluded if it goes to superior court.
Renewal of the copyright term cannot be done. There exist no specific regulations regarding the online infringement of copyright in Brazil. The Brazilian copyright law makes the nationals of other designated countries entitled to the same level of protection as available to their own nationals.
The copyright holder, an author’s successor after his/her death, and the Federal Union in case the work falls in the public domain have the right to sue for copyright infringement. The proof of infringement and direct involvement is sufficient to make an alleged infringer liable and there is no need to prove the intention to commit infringement.
An attempt to avoid and restrict infringement of copyright protected work can be done through campaigns and police measures aiming to ensure access to content. As far as an online infringement of copyright is concerned, agreements with search engines and Internet Service Providers can be made or the federal and state ministries can be stimulated in order to reach an agreement so that the illegal activities spreading on the internet can be controlled.
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