By Manuela Correia Botelho Colombo

Brazil is actively engaged in a cutting-edge debate over reform of its copyright law, involving issues such as the abuse of copyright holders and constructive exceptions in the law (like copying for education and/or transformative purposes and authorisation to copy by libraries and museums to preserve their works). But the government needs to hear from all interested parties – especially the artists – and prevent the debate from transforming into a political-ideological discussion.

The Brazilian Ministry of Culture (MINC) has submitted for public consultation in Brazil a bill of law aiming to introduce some modifications to the current Copyright Law (Law 9,610/1998). This public consultation period is occurring in the period between June 14 and July 28, 2010 ¹.

MINC’s representatives maintain that the purpose of such a bill is to harmonise the protection of the rights of authors and artists, combined with citizens’ access to knowledge and culture. In addition, with better-defined rules, there would be more certainty for those who invest in the cultural area.

Advocates for the reform say the current law no longer responds to the challenges faced by the “information society” (where people are connected through virtual media), or to challenges introduced by new technologies (e.g. MP3, P2P) and new forms of production and distribution of information, culture and knowledge ².

In line with this argument, representatives of MINC affirm that the Brazilian law is one of the most rigid in relation to copyright protection worldwide. For instance, according to Consumers International IP Watchlist, Brazil was rated as one of the worst countries, as a direct reflection of its “strict” system ³.

Several aspects of the Copyright Law are under discussion. The main aspects of the reform are the following:

(i) arrangers and music composers (in the music field) and directors, writers and composers of the original sound track (in audiovisual works) would be clearly recognised as authors of the work;
(ii) in works made for hire, the author may recover his/her rights in some cases. He/she shall also be entitled for uses not previously established and he/she will be able to publish it in complete works;
(iii) the entities entitled to revenues and distribution of rights shall reduce administrative costs and deadlines for distribution of the amount to the rights holders, publicise all the acts of the institution (more transparency), particularly the collection and distribution;
(iv) the creation of an entity for voluntary dispute resolution within the Ministry of Culture, as opposed to judicial disputes;
(v) more categories of exception for use of the work without need for authorisation, such as: for teaching purposes; film clubs would be allowed to exhibit films where there is no entrance fee; adaptation and reproduction, without commercial purpose; works in formats accessible to persons with disabilities;
(vi) authorisation for reproduction, with no commercial purpose, of works for which the last publication is not accessible and with no stock available for sale;
(vii) there will be incentive for authors and publishers to make available their work for reproduction by copying services, such as in the universities (for licensing purposes);
(viii) authorisation for private copy (aka backup copy);
(ix) libraries, museums and film archives would be allowed to make copies freely to preserve the cultural heritage of the country;
(x) it will be considered a violation to have payment by music labels to radios and television stations for the execution of certain music (known as “jaba”);
(xi) producers of audiovisual works would be entitled to payment from exhibition in cinemas and television stations.

However, opponents to this law reform declare that those who say that it will enable the copying of passages from books (for instance) use inflated moral speech and distort facts.

One aspect to be considered is that the copyright law adapts with time, according to the necessity of the community, without the need to create a new law. In this way, changes can happen gradually through the courts, which analyse case by case.

In any case, reality shows that, for example, no one has ever been punished for copying music from his/her CD to an iPod. Furthermore, the current law already establishes exceptions to copyright infringement (sections 46 of Law 9.610) ⁴.

They say that behind all this political speech, the truth is that MINC wants to share the revenue that National Collection and Distribution Office (“ECAD”) collects. The primary function of ECAD is to collect and distribute money related to music performances. It is composed of associations ⁵, which are formed (and administered) by musicians and composers, who are the real interested players.

In this sense, the government (through MINC) would not do a better job to protect their rights. If the new text is approved, the government shall supervise the collection of royalties through the creation of the Brazilian Institute of Copyright (“IBDA”).

Brazilian artists like Joelma, Walter Franco, Sandra de Sá and Roberto Carlos have publicly opposed to the reform of the law proposed by MINC.

Meanwhile, there is a bill of law under discussion in the Brazilian Congress that proposes the end of ECAD, given that it is an entity that collects money arising from all songs performed in the country – from those you hear on the radio to those played in the lobby of a hotel. According to the author of the bill, not all the resources go to the musicians (since nobody controls the distribution of rights by ECAD).

In Brazil, there is a significant number of lawsuits discussing the legitimacy of ECAD to collect these amounts; the quantity of the money collected; and the number of actions initiated by ECAD increases constantly, against different types of entities (creating several problems and instability).

On the other side, supporters of the reform say that Brazil is one of the only countries where the entity that collects copyright amounts is not supervised.

Furthermore, experts in the field maintain that the applicable law affords too much protection to authors and that it is basically impossible to pursue all the infringements regulated by the law, especially those occurring through the internet ⁶. To illustrate this affirmative, the current law impedes even public libraries from copying a rare work that is deteriorating and is out of print and is the only sample.

Several organisations support the copyright reform. However, some of them are not really interested in a better balance between the rights of authors and public knowledge. In fact, they favour the total liberalisation of the law, e.g. no boundaries (like free music, free copying and downloads). This is not a positive approach for the development of arts and culture.

The organisation Creative Commons in Brazil supports the reform of the law. The main purpose of the organisation is “to establish a fair middle way between the extremes of copyright control and the uncontrolled uses of intellectual property. It provides a range of copyright licences, freely available to the public, which allow those creating intellectual property – including authors, artists, educators and scientists – to mark their work with the freedoms they want it to carry ⁷.”

The debate is very controversial and is dividing several sectors, artists and representatives from different entities. The public consultation on the reform has received numerous contributions ⁸ and suggestions to improve the text of the law. At least this fact shall contribute to the debate involving copyright protection in Brazil, aiming to clarify its limits and scope.

There is no doubt that a clearer law helps to reduce the amount of litigation and prevents violations by people who do not understand the coverage of the legislation. However, the law will never be able to cover all situations in real life (e.g. technology tools change day after day), which leaves to the courts and specialists the role of interpreting the law in the most adequate and reasonable way, avoiding unfair and unrealistic decisions.

Manuela Correia Botelho Colombo is a lawyer at Gusmão & Labrunie Advogados (www.glpi.com.br) in São Paulo. Her background includes: an LL.B. at the Catholic University of São Paulo (PUC/SP), São Paulo, 2006 Specialization in Civil Procedure at the Catholic University of São Paulo (PUC/SP – COGEAE) – 2009; Master in Laws (LL.M.) at the University of California, Berkeley – 2010; Certificate in Law and Technology at the University of California, Berkeley – 2010.

¹ According to information in the official website, this term might be extended (available at http://www.cultura.gov.br/consultadireitoautoral/).
² See http://culturadigital.br/simposioacervosdigitais/2010/04/30/carta-enderecada-ao-ministro/ (Letter sent to the Ministry of Culture, Mr. Juca Ferreira).
³ See http://reformadireitoautoral.org/files/2010/03/ip-watchlist09.pdf.

http://culturadigital.org.br/site/lda/referencia/

⁴ Section 46. “The following shall not constitute violation of copyright:
I. Reproduction:
(…)
(d) of literary, artistic or scientific works for the exclusive use of the visually handicapped, provided that the reproduction is done without gainful intent, either in Braille or by means of another process using a medium designed for such users;
(…)
II. the reproduction in one copy of short extracts from a work for the private use of the copier, provided that it is done by him and without gainful intent;
III. the quotation in books, newspapers, magazines or any other medium of communication of passages from a work for the purposes of study, criticism or debate, to the extent justified by the purpose, provided that the author is named and the source of the quotation is given;
(…)
VIII. the reproduction in any work of short extracts from existing works, regardless of their nature, or of the whole work in the case of a work of three-dimensional art, on condition that the reproduction is not in itself the main subject matter of the new work and does not jeopardize the normal exploitation of the work reproduced or unjustifiably prejudice the author’s legitimate interests.”
The current law also establishes protection for “adaptations, translations and other transformations of original works, presented as new intellectual creations” (section 7, XI). This could be a way to obtain protection of transformative works.
⁵ See http://www.ecad.org.br/.
⁶ In “Quase tudo feito na Web vai contra a lei, diz advogado; veja dicas para andar na linha”, available at: http://tecnologia.uol.com.br/ultnot/2008/03/20/ult4213u367.jhtm.
⁷ As defined at Creative Commons website: http://www.creativecommons.org/
⁸ For instance, in the first three weeks, it has received more than 880 contributions.