Brazil’s Copyright Reform: Schizophrenia?

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By Pedro Paranaguá, Doctoral Candidate, Duke University School of Law

Brazil’s new Minister of Culture is under severe pressure from civil society groups, academics and some artists. After just a few weeks in power, Minister Ana de Hollanda issued an order to take the Creative Commons license off of the Ministry’s website. In her own words (in Portuguese): “We will discuss copyright reform when the time comes.”

After nearly seven years using CC licenses, a legacy left by musician and former Minister of Culture Gilberto Gil, now Brazil’s Ministry of Culture abruptly withdraws the license without further dialogue or consultation. Why is that a problem?

First, the new president Dilma Rousseff was Lula’s henchwoman. She is known to be personally supportive of Brazil’s National Plan for Broadband (PNBL), as well as of the immense and organized free culture, and free and open source software movements in the country (as we all know, free as in freedom; and not free of charge). Hence, those who voted, and elected, her exactly for her support to these initiatives are feeling misrepresented.

Second, because under the former mandate Brazil had conducted a long, wide and open public consultation with all stakeholders to get inputs for finally reforming the country’s copyright law – one of the most unbalanced copyright regimes in the world [pdf]. These two are, together, an asynchronism that is hard to justify.

Prominent culture producers and famous artists are publishing an avalanche of pieces in Brazil’s major newspapers. It’s a buzz everywhere in the country’s culture circles. Some are strong supporters of the new minister’s action. Others are equally strong opponents (all in Portuguese).

I will not get into details of the discussion whether who is right and who is wrong. Or whether a Creative Commons license should be used by Brazil’s government. Although this is an important part of the discussion, as I have said elsewhere, this is only the tip of the iceberg. The issue is deeper, much deeper.

At first glance this debate looks schizophrenic. People demanding wide access to culture. Artists demanding fair remuneration. As if the two were opposed or incompatible.

Wide culture access does not mean the lack of fair remuneration. On the contrary. A basic algebraic rule tells us that the more one sells, the more money one makes. Of course one could argue that the higher the demand, the higher the prices. However, one thing, though disputed by some, cannot be ignored: intellectual property rights are non-rival and non-scarce. My use does not interfere with your use, and my consumption does not diminish yours. Digital files and the internet changed forever the copyright scene.

Artificial scarcity does not work, and in the long term it is not good to anyone – neither to consumers, nor to artists or corporations alike. Of course intermediaries feel threatened. Their end is near, unless they are as creative as the copyright industry is meant to be. Collecting societies seem scared of losing their slice of the cake. They do, however, have their function. Should they fairly distribute the royalties, and have an open and transparent management system, they would still have their function, provided artists, consumers (after all they are the ones paying the royalties), and competition and consumer authorities have the right and obligation to scrutinize their functioning.

More than that. There should be a non-exhaustive list of exceptions and limitations to copyright, authorizing educational and private non-commercial uses, in furtherance to a broader fair use-like clause. This would make a more balanced system.

Disruptive innovators are disturbing incumbents. And the reason is simple. Innovators are being creative. They are using technology not only for their own benefit, but for the benefit of society as a whole. New ways of doing business can proportionate a much wider system of remuneration for the use of copyrighted works, at the same time that people have greater access to culture.

Merchandising. Video-games. Mobile telephony packages such as TDC Play. Broadband packages. Spotify’s unlimited free streaming. VEVO’s ad-supported music videos. Marketing uses of Creative Commons licenses such as the one successfully made by Nine Inch Nails. Netflix. The model used by Radiohead. Google’s recently launched Android Marketplace. The examples are plentiful. To enumerate all possibilities or find a creative business model for the copyright industry is not my job, however.

There is no place for extremisms. That’s for sure. Simply demanding access without fair remuneration is not an option – although there are indeed several successful business models based on free. It does not matter who pays, as long as there is someone paying somewhere within the consumer chain. Equally true, simply advocating for an eternal copyright protection term (in Portuguese), as has recently been proposed, is not an option. This would indeed be a schizophrenic conversation.

Copyright is not, and should not, be viewed only as a means for creating arts and remunerating artists. Its spectrum is much wider. Cultural diversity, education, and innovation are, and should be, essential parts of a broader copyright policy. The digital world and the internet changed copyright forever. What Brazil needs is a true long-term countrywide intellectual property and innovation policy program – including, but not limited to, copyright. And it should be designed to meet the specific needs of the country, having in mind the existing flexibilities in international treaties.

And for that, not only the Executive power has an important role, but also Congress. People active in this debate should realize that Congress represents them. And the Judiciary could also play a crucial role depending on the interpretation it gives to certain decisions. All of the three branches always having in mind a common goal: cultural diversity, education, innovation, and national development.

A true balanced approach, free of biases, through dialogue, participation, and transparency; that is the path to be followed. The time for a copyright reform in Brazil has already come. Now culture users and artists must acknowledge that they are in the same boat, as we say in Brazil. One needs the other. One wants the other. Both want art. Both are ready and willing to exchange (money and art) for the mutual benefit of society – provided it’s fair, transparent, and democratic.

Pedro Paranaguá is a doctoral candidate at the Duke University School of Law. He holds a Masters in Law (cum laude) from University of London, and is an IP consultant.

Attribution-Noncommercial-No Derivative Works 3.0 Unported

Comments

  1. R. Vazquez says

    Mr. Paranagua seems to forget that rampant piracy is decimating the music industry in Brazil. Everyone involved in the production of music, including authors, performers, producers and related support, staff has been feeling the pain of lost jobs and opportunities. Despite the availability of many online offerings the “will to exchange”, as Mr. Paranagua puts it, does not seem to be so prevalent.

    Access, at least to music, is not the problem in Brazil. The development of a thriving market and extremely talented artists, as it has happened in Brazil, can only happen if the music is available to the public. Today the major problem is protection of the product generated by those same talented creators so they can continue to practice their art.

    The copyright reform should include this issue as a primary objective.

  2. Benny Spiewak says

    Hi Pedro:

    Yes, the material once licensed under a CC-based model is no more. I would revert back to you the question you raised: Why is that a problem? You know that IP licenses allow creators to communicate which rights they reserve and which rights they waive for the benefit of recipients or other creators. So, why is that a problem if the new Minister reserves the rights associated to the works of the Ministry of Culture?

    In addition, I’m not sure I agree with your views that “my use does not interfere with your use, and my consumption does not diminish yours”. I would prefer facing the real world and realize that there is indeed a whole entertainment industry that is not gaining from a wide spreading anti-IP culture. Sure there are tons of mistakes in the industry. However, certain takes on IP lead to the conclusion that IP is bad for authors. Some of those advocating in this sense are not authors/creators or, worst, used (or continue to) benefit from the IP system to protect their works/creations.

    I’m not author, so it is not up to me decide. Still, I’d not be happy if a client of mine refuses to pay for my services, based on the claims that I simply construed the law and provided them with a piece of paper that I called legal opinion. Let us then replace the words “my clients” and “my services” by “audience”, “author’s rights”. I guess the outcome may as well be the same. I believe the authors/creators won’t be happy.

    I’m absolutely pro those who want (and effectively manage) to share their works on a free basis, without limitations. Hooray! I’m just not satisfied with those trying to outcast those actors/creators that act otherwise. I voted for our current President and would mostly feel misrepresented if her Government acted in this sense.

    Of course, I’m pro-IP. I don’t really like clients that’d assume my work shouldn’t be paid and that actually should be freely disclosed, shared for its cultural, social value.

    Abraços,

  3. Riffat Gupta says

    R. Vasquez says: “Mr. Paranagua seems to forget that rampant piracy is decimating the music industry in Brazil”

    Yeah, yeah. That is the same as saying “Home taping is killing music”.

    The problem is inability of the music industry in Brazil to be competitive, and offer products at a market price that actually makes sense to the Brazilian economic purchase power. Selling digital tracks at US$1.50 a piece, more than the US, won´t get you many customers. Neither selling a DVD for US$20 or a CD for US$15.

  4. says

    Dear Pedro,

    The Ministry was very prudent and did the right thing in not going further with a copyright revision which was badly drafted and conceived.

    Many organizations of content creators and right holders showed their concerns and the bill was clearly not ready to move forward.

    It is easy to promulgate populist concepts of free access but much more difficult to create a work.

    The Government should not try to cover his fault of years of lack of investment in education by blaming creators and forcing compulsory licenses on them.

    Access to culture is a fine point but we should protect the ones who make and also the ones who invest in making culture available in the first place.

    The mere fact that the Internet allows distribution of work is not reason enough to disregard the need of prior authorization. The Internet also allows the hacking of bank accounts and this is not sufficient to make it legal.

    On the contrary, the digital environment is a huge opportunity for authors and right holders but, among other conditions, the potential will only be realized if we have a law that curtails the widespread distribution of unauthorized content and allows the control and exploitation of copyright works.

    For me, the technical opportunities presented by the digital arena which allow the licensing of works in pay per view and diverse others schemes of remuneration giving users the possibility to accessing only individual works or a whole library in subscription formats is more than sufficient to justify strong copyright laws to enforce them.

    As brilliantly advocated by Sam Ricketson and Jane Ginsburg on the seminal book International Copyright and Neighboring rights while analyzing the progress of technology and private copying with focus on the Bern Convention and the European Directive (International Copyright and Neighbouring Rights – The Berne Convention and Beyond, Ed. Oxford. Second Edition 2006, itens 13.33, pgs 779, 783 ):

    “By its very nature, “private use” would appear to be confined to the making of single copies, and the basis for it a kind of de minimis argument, coupled with an acknowledgement that author’s right should not impinge upon what is done in the purely private sphere. Nevertheless, at the time private use was being discussed in the preparations for , and the deliberations of, the Stockholm Conference, the techniques for private copying were far more rudimentary than they are today. Essentially, private use exceptions in national laws at that time were predicated upon the basis that those copies were made by hand or with the use of a typewriter, and that the quantity of such copying could scarcely conflict with either the normal exploitation of the work or the legitimate interests of the author.

    With the development of reprographic reproduction, audio and video recording, and digital copying the scope of what may be copied privately has now expanded beyond recognition.

    Reproduction, by such means will usually lie outside the scope of article 9(2): as the normal way for a copyright owner to exploit his work is by licensing others to make reproduction of it.

    As a starting point, it should be noted that the consistency of private copying with the second step of 9(2) is not immediately apparent, in that making a copy by a private user that substitutes for a paid copy certainly looks like a conflict with a normal exploitation. If this nonetheless pass the second step, as under the present EU provision, this will be because of such matters as the empirical consideration of practical enforceability, as well as the non-economic normative consideration of privacy. But if transaction costs can be reduced in the future, for example, through improved technological measures that facilitate private licensing, the non-economic, normative consideration of privacy would then become the only operative factor in relation to the second step. Should this continue to govern the question of whether there is compliance with that step? Bear in mind that presently compensation is required under the third step., where the justification is both transactional costs (enforceability) and privacy. But if the primary justification becomes privacy alone, it would then be anomalous for member states to continue to impose compulsory licenses, in circumstances where technology now makes license possible. In other words, the second step would no longer be satisfied, unless the member states in question where to advance the bold argument that privacy considerations in themselves are sufficient to take such usages outside the scope of normal exploitation.”

    Other countries are already moving in this direction and Brazil should not follow a populist agenda.

    Abraços,

  5. Shveta Saha says

    Rodrigo Carneiro seems to think that copyright reform equals populism. He should pay more attention to what happened in his neighbor country of Chile, where the copyright law has been reformed to reach balance, something that the Brazilian law absolutely lacks. The Chilean government cannot by any means be called populist. It is, rather, a rational process that was undertaken in order to solve a handicap in the current law.

    From visiting Mr. Carneiro´s site (appropriately named http://www.entertainmentlawbrazil.com.br) one asks why he does not use his native language Portuguese, and one also asks why he does not see the problem of the unbalanced law of his own country. Maybe he is too concerned with entertainment, and less so concerned with the law and what is right.

Trackbacks

  1. [...] In all but one of the countries covered by the watchlist, the answer to that question was that copyright owners do not face any penalty for infringing consumers’ rights. “Planned reforms to Brazil’s copyright law may be the first provisions to provide a real remedy to consumers whose user rights are obstructed by copyright owners.” it said. And now those draft provisions appear to be in danger of being shelved (IPW, Inside Views, 8 February 2011). [...]

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