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    Inside Views
    Inside Views: Brazil’s Copyright Reform: Are We All Josef K.?

    Published on 12 May 2011 @ 7:45 pm

    Disclaimer: the views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.

    Intellectual Property Watch

    By Pedro Paranaguá

    On 20 April, Brazil’s Ministry of Culture announced the schedule (in Portuguese) for the country’s copyright law reform. It will be accepting comments on the draft bill until the 30th of May. Between 1 June and 14 July, the Ministry will implement modifications into the draft bill, send it to the federal government’s Inter-Ministerial Group on Intellectual Property (GIPI) for its assessment, suggestions, and amendments. Finally, on the 15th of July, the Minister of Culture will send the final version to the President’s Office – which will then be responsible for forwarding it to Congress.

    The upcoming two months will (continue to) see heavy lobbying, from various sides.

    During President Lula’s two mandates (2003-2010) Brazil had acclaimed singer and composer Gilberto Gil as the country’s Minister of Culture, then replaced by Juca Ferreira. During that time, much work was done to incentivize the creative industry on the one hand, and to promote access to culture on the other. It was an attempt to have a triangular marriage between the industry, artists, and society at large.

    Under Brazil’s new President the new Minister of Culture’s administration has clearly shifted its direction, however.

    Timeline: understanding Brazil’s copyright reform

    1998: enactment of the current Copyright Act
    2003-2010: Lula’s mandate (Gilberto Gil & Juca Ferreira) – development of a national policy for culture and copyright
    2006: assessment study [pdf] for benchmarking other countries, and identifying the needed amendments, presented at the International Network on Cultural Policy (INCP)
    2007: launching of the National Forum on Copyright [pdf file in Portuguese]
    2008-2009: several conferences [in Portuguese] with multiple stakeholders as part of the National Forum on Copyright
    14 June 2010: first draft bill made available [English pdf herePortuguese here]
    14 June – 31 August 2010: wide, open & transparent online public consultation [in Portuguese] – around 8,000 proposals were made
    September-December 2010: second version of the bill drafted after inputs from society, and after revision by the Inter-Ministerial Group on Intellectual Property (GIPI) – a 150+ page explanatory report was prepared internally by the government
    23 December 2010: second version of the bill forwarded to the President’s Office
    1st January 2011: Mrs. Dilma Rousseff (Lula’s former head of the President’s Office) takes office as Brazil’s new President – and Mrs. Ana de Hollanda is the new Minister of Culture
    January 2011: second version of the bill returned to the Ministry of Culture due to a new administration
    February 2011: Mr. Marcos Alves de Souza, head of the Intellectual Rights Office, was exonerated from his post, and Mrs. Marcia Regina Vicente Barbosa is nominated in his place
    March 2011: the Professional Musicians Union of Rio de Janeiro, the Brazilian Association of Independent Music (ABMI), and 130 Brazilian musicians, composers and artists urge the government [in Portuguese] to find a third way out of the copyright reform deadlock, ensuring payment to creators, however without criminalizing end user downloads
    22 March 2011: second draft bill made available [pdf in Portuguese]
    April 2011: Ministry of Culture supports a conference which will take place in Salvador on the 18th of May: with a couple of exceptions, virtually all the speakers have some relation with Brazil’s collecting society (ECAD – Portuguese acronym) or with copyright holders
    20 April 2011: new schedule made available (see first paragraph above)
    21 April 2011: open letter with 2,000+ signatures from academics, artists, producers, the internet community, and culture activists to President Rousseff showing discomfort with the shift on cultural policy taken by the current administration, and urging an open, transparent, and democratic cultural policy
    April-May 2011: scandals involving ECAD’s alleged misconduct (and actions that would violate criminal law) are published by several major newspapers – see 1, 2, and 3 [all in Portuguese], as well as email exchanges [in Portuguese] between associations that are part of ECAD, allegedly demonstrating their close ties with the current Ministry of Culture’s administration
    5 May 2011: Senator Randolfe Rodrigues starts collecting MPs signatures for initiating a Parliamentary Commission of Inquiry (CPI – Portuguese acronym) on ECAD’s alleged wrongdoings: five days were enough to collect the 27 needed signatures – Brazil is one of the very few countries where the collecting society (ECAD) is not overseen or regulated by the federal government
    9 May 2011: the government mandates that Minister Ana de Hollanda refunds the stipends she used on a non-government-related trip
    10 May 2011: Minister Ana de Hollanda had to be escorted by several police officers in order to exit State of São Paulo’s legislative chamber after holding a meeting with artists
    11 May 2011: famous composer and singer Caetano Veloso supports Minister Ana de Hollanda, and says that the initiative of numerous artists, producers, academics, and civil liberties activists using microblogging, social media, and the internet is nothing but part of a “mythical bubble. Nothing more than that.”
    11 May 2011: the General Secretary of the Presidency manifests support to Minister Ana de Hollanda

    Lack of transparency

    Despite the nearly 8,000 contributions received in 2010 through an online, open and transparent platform that enables everyone to have full access to all content of the proposals, now the Ministry of Culture’s new administration is launching another consultation. Yes, another.

    This time, however, one cannot say that it is open or transparent.

    The proposals and suggestions, according to instructions from the Ministry of Culture, should be submitted using a Microsoft Word (.doc)[*] form provided by them, and sent either by email or by post. In the Ministry’s press release there is no mention whether the proposals will be made public by the Ministry or not. What’s wrong with that? One will not know how many proposals have been submitted, by whom they have been sent, nor what is their content. If something is released after the new consultation, one has no way of knowing if all proposals have indeed been published, nor any guarantee that the proposals will not be edited.

    There is lack of transparency. There may possibly be reasons that explain this lack of transparency, but certainly there is no reason that justifies it.

    A second point to be asked: Why does the form provided by the Ministry require legal justifications for the suggestions? Is this a consultation to society or to lawyers? I do not dispute that any proposal or suggestion that is accompanied by legal justifications (and that are plausible) will have greater chances of success. I wonder, however, whether social or economic arguments will be given less weight? Must it be so? Should it be so? Isn’t law supposed to regulate the activities (including economic) of society?

    Finally, a third point. In his brilliant book, “The Trial,” Franz Kafka tells of an endless sequence of almost surreal surprises, generated by a higher and inaccessible law. The main character, Josef K., is being sued but he does not know for what reasons. Worst than that. He does not even know the rules by which the trial will take place.

    After Brazil’s copyright draft bill was put out for public consultation last year, the text was revised and modified by the federal government’s Inter-Ministerial Group on Intellectual Property (GIPI). As usually is the case for such amendments, it prepared a detailed report explaining and justifying the new text.

    That report has never been disclosed, however.

    How will society present arguments on the new consultation without knowing the reasons that led to the redrafting of the bill? “Kafka reproduces the denial of the democratic state of law and at the same time, takes the reader to realize that, even living under the aegis of ‘full’ democracy, one must not lose sight that the institutions do not keep their raison d’etre in providing public service, but rather in subordinating to power and to the dominant classes.”

    Should we live in a truly democratic state of law, it is imperative that there be transparency, and that the consultation be truly open, public, and visible to and by all, and that society may present its arguments and justify its proposals based on the justifications raised by the government when amending the draft bill.

    Otherwise we are all Josef K.

    [*] Using a closed and proprietary format violates the rules established by the federal government’s e-PING standards (Interoperability Standards for Electronic Government), which mandates the use of open standards. After academics and civil liberties activists denounced this violation, the Ministry of Culture is now apparently offering the possibility of filing in an online form.


    Pedro Paranaguá is an IP & technology policy consultant with 10+ years experience. He is a doctoral candidate at the Duke University School of Law, where he teaches Brazilian Portuguese for Legal Studies, and he holds a Masters in Law (cum laude) from University of London.

     

    Comments

    1. To rethink music, one needs to think wider than music and deeper in music – Communs / Commons says:

      [...] of sharing and new financing mechanisms for creative activities in Europe, in Brazil despite recent changes in the government copyright policy, and from international arenas opening some [...]

    2. IP-Watch – Reforma del copyright brasileño: ¿Estamos todos como Josef K.? | Red Pa Todos says:

      [...] para Estudios Jurídicos, con maestría en Derecho (cum laude) de la Universidad de Londres. Fue publicado originalmente en IP-Watch el 12 de mayo de 2011, en inglés, con licencia CreativeCommons by-nc-nd, ésta es una traducción [...]

    3. P2P Foundation » Blog Archive » Kafka in Brazil: Minister Ana de Hollanda’s non-transparent copyright reform consultation process says:

      [...] Excerpted from Pedro Paranaguá: [...]

    4. La reforma de la ley de copyright en Brasil « Cibercultura, P2P e Industria Cultural says:

      [...] realizada el año anterior y pida una nueva consulta, ahora con participación restringida. Lea más aquí. Categorías:Brasil, Copyright, Noticia LikeBe the first to like this post. [...]

    5. A reforma da lei de copyright no Brasil « Cybercultura, P2P e industria Cultural says:

      [...] realizada durante a gestão Lula e pedisse uma nova consulta, agora com participação restringida. Leia mais aqui. GA_googleAddAttr("AdOpt", "1"); GA_googleAddAttr("Origin", "other"); [...]

    6. Brazil’s Leaked Copyright Reform Draft Bill Shows Latest Thinking | Intellectual Property Watch says:

      [...] 2011. For an overview of past events connected to Brazil’s copyright reform, see this, and this (including a [...]

    7. Brazil’s Copyright Reform Draft Bill: The Good, The Bad And The Confused | Greediocracy says:

      [...] this timeline indicates, Brazil’s attempts to pull adult a copyright remodel check have been boring on for [...]

    8. Brazil’s Copyright Reform Draft Bill: The Good, The Bad And The Confused | Gas Rebate Ticket says:

      [...] this timeline indicates, Brazil’s attempts to draw up a copyright reform bill have been dragging on for [...]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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