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Inside Views

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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.

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    Inside Views
    Inside Views: Brazil’s Leaked Copyright Reform Draft Bill Shows Latest Thinking

    Published on 12 December 2011 @ 7:26 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

    Another chapter of the Brazilian copyright reform is out. The third version of the draft bill leaked a few days ago to a major newspaper in the country, and a handful of academics (including myself) had access to it.

    After a delay of more than four months, the third version of the copyright draft bill was forwarded from the Ministry of Culture to the President’s Office in late November 2011. For an overview of past events connected to Brazil’s copyright reform, see this, and this (including a timeline).

    While major newspapers in Brazil (O Globo, and Folha de SP) had a concurring opinion that the leaked draft bill follows 85 percent of the previous (Lula) administration’s draft, making clear that that was a positive factor, I understand that the remaining 15 percent that were subject to change are of vital relevance. Quantity here is not the main issue. The quality of drafting, and what provisions are included (or left out), are much more important.

    In the leaked letter that Mrs. Ana de Hollanda, Brazil’s Minister of Culture, addressed to President Rousseff, she mentioned that copyright law is an “important factor for lowering social inequalities, and for enhancing basic principles of democracy, such as social inclusion and strengthening of citizenship.” Mrs. de Hollanda also makes reference to the Constitutional fundamental right of copyright – Article 5(XXVII), while at the same time recalling that other Constitutional rights, such as the right to education (Articles 6 and 205), the right to access to information (Article 5(XIV)), and the right to access to culture (Article 215), should be taken into account when balancing all the interests at stake.

    Two issues in the letter, however, make some raise their eyebrows. While Mrs. de Hollanda acknowledges that when addressing the issue of copyright one should take into account the social right of access, she then states that the digital world and the internet are posing risks to the copyright regime, and that authors and copyright holders need more control in the digital world.

    While this is certainly true for some major corporations and for several artists, this is equally absurd for several other authors, from well-established to beginners. Radiohead and Nine Inch Nails are well-known examples. In Brazil, just to mention a few, we have Paulo Coelho, O Teatro Mágico, BNegão, and Mombojó, amongst several others that freely and willingly distribute their works on the internet – and exactly for that reason (and for the great demand for their works) these artists are making more money. Control is not always the best option. Other ways of doing business are promising. The Nigerian film industry, and the Tecnobrega and Forró Eletrônico music scenes in Brazil, are great examples of ways of doing business that turn the copyright regime upside down.

    Not only former Minister of Culture Gilberto Gil says that a stringent control over copyrighted works are not always the best option (or that it may serve as a way to keep the status quo), but also William Patry in his “Moral Panics and the Copyright Wars”. No one is advocating for copyright infringement. In the digital world, however, control is not always the best option – besides being very costly, and having adverse effects in an unequal society.

    And that is exactly where Mrs. de Hollanda makes some raise their eyebrows again, when she asserts that copyright is a “private right,” ignoring all the discussions heralded in the past decades on public goods. I will not get into this complex, yet very important, discussion here. On this, see Nobel Prize laureate Elinor Ostrom’s work on the commons.

    While the letter to the President and the third draft bill have imperfections, they seem to be well intended. According to the letter, Brazil’s copyright reform focuses on three issues: i) to correct conceptual errors that are further sources of uncertainty and legal misinterpretations, ii) to implement new provisions, such as on orphan works, on works for hire, on the supervision and oversight of the collecting society, and on exceptions and limitations to copyrighted works, and iii) to clarify the Constitutional principles and objectives that apply to copyrighted works, and make sure that other principles and objectives of the Brazilian legal system found in the country’s Civil Code are directly applied to copyright issues in order to strike a balance in the interests at stake.

    The good: new or modified provisions found in the leaked draft bill (non-exhaustive list)

    1. works for hire: not dealt with in the current Act, this provision addresses the issue, and limits the control by the employer up to ten years
    2. exhaustion of rights (first sale doctrine): the copyright in a work is exhausted after its first sale in a WTO member country by the copyright holder or with his/her authorization (not valid for rental of audiovisual works and for computer programs)
    3. collecting society (ECAD): the government will have the right to oversee the collecting society’s management
    4. dispute resolution: the Ministry of Culture will serve as mediator in disputes involving collecting societies
    5. social function of the contract and excessive burden: the new Act will explicitly make reference to these general principles of law found in Brazil’s Civil Code, and that should be applied to copyright law
    6. public domain: authors will be able to put their works into the public domain during their lives (something new in a country following the author’s rights regime)
    7. other uses without authorization (compulsory licenses): a) for use of orphan works; b) if there is denial of granting a reprographic license for large numbers of copies in Universities, and c) if the heirs or successors exceed the limits imposed by the economic and social ends of the copyright regime, or by good-faith
    8. circumvention of protection measures: copyright holders will be liable if preventing or hampering the uses authorized under Article 46 (exceptions and limitations to copyright)
    9. exceptions and limitations:
    i) space-shifting and interoperability
    ii) reproduction, translation, adaptation, distribution, communication, and making available exclusively for persons with impairment
    iii) private copying
    iv) incidental use (background use, mashups, and so on)
    v) citation for criticism and study
    vi) certain uses for rehabilitation or therapy purposes
    vii) musical public performances within religious activities
    viii) public performance within film-society associations
    ix) reproduction, translation and distribution for educational purposes
    x) reproduction for conservation and archival purposes
    xi) communication and making available within libraries
    xii) public display of broadcasts and public performance of sound recordings by liberal professionals and micro-companies
    xiii) general clause: what some erroneously call “fair use” is a general clause that gives power to the Judiciary to authorize other similar uses that are not considered to be a violation of copyright law under the national public policy priorities, and that observes, cumulatively, the following three requirements: a) the use should not be commercial nor for profit, b) the use should not conflict with the commercial exploitation of the work, and c) the use should not unjustifiably prejudice the interests of the author.

    All the above-mentioned provisions are much welcome to the Brazilian copyright regime. Most of them, however, should be re-written in order to better represent the interests of society at large. Several provisions are further narrowed beyond what the Berne Convention for the Protection of Literary, Artistic and Scientific Works mandates, or beyond the requirements of the World Trade Organization’s (WTO) TRIPS agreement.

    The general clause found in Article 46 on exceptions and limitations, for instance, requires that all the three conditions set forth under that Article be met in a cumulative fashion. That provision is based on Berne’s three-step test. A progressive interpretation given by some academics to the three-step test, however, is that the three steps should not be assessed in a cumulative basis, but rather as an indivisible entirety, in a case-by-case basis, just like the “fair use” clause is applied under the United States law. As a matter of fact, US courts have correctly allowed the use of copyrighted works, including when there was a commercial purpose (see the U.S. Supreme Court case Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)).

    The bad: new or modified provisions found in the leaked draft bill (non-exhaustive list)

    1. Internet service provider (ISP) liability: notice and take-down (with counter-notice)
    2. works not protected: technical standards “per se” (such as the US’ BlueBook)
    3. copyright duration: life of the author plus seventy years – i.e., twenty years beyond the required by the WTO, and according to Brazil’s Central Bank, the country pays virtually 100 times more copyright royalties to the US than it receives from the US.
    4. anti-circumvention measures: [updated] the liability of copyright holders for preventing or hampering the uses set forth in Article 46 (exceptions and limitations to copyright) as mentioned under #8 above will not be applied if the technical measures are essential for the commercialization or the licensing of works in the digital format, i.e., the copyright holders will most likely argue that technical measures are essential, and thus they may not be held liable for using technical measures. Users will continue to be allowed to circumvent technical measures, however, for the purposes of making a use as authorized under Article 46 or when the work is in the public domain.

    In regards to #2 immediately above, technical standards such as citation for academic works should not be protected by copyright at all. Not even in themselves, regardless of what would be the meaning of “per se”. No legislation should protect any type of technical norms or standards, for they are general rules of public interest, and therefore should not receive copyright protection.

    On ISP liability, the Ministry of Culture argues in the technical report sent to the President’s Office that this is the best option available, and it explicitly mentions the United States as a good example to be followed. The Ministry of Culture does not mention, however, that there is heavy criticism in regards to the loopholes existing in the US notice-and-take-down scheme. It omits from the report, as well, that there is even a proposal for a reverse notice-and-take-down scheme put forward by some renowned academics.

    The Ministry of Culture further rejects the approach taken under the called “Marco Civil da Internet” or civil rights framework for the internet, which is a bill presented to the Brazilian Congress that has been built collaboratively with society, and that states the principles underlying the Internet in the country. Under the “Marco Civil” provisions, content may be taken down if, and only after, a court order is granted.

    The Ministry of Culture argues that the “Marco Civil” allows other cases (such as copyright issues) to be treated differently by different legislation. In any case, the notice-and-take-down scheme adopted by the US does not seem to be the best option available – as time and experience evidence. Another possible approach could a notice-and-notice scheme under which the copyright holder notifies the ISP which then notifies the alleged infringer, who ultimately is the one who will take the content down or not – subject to further liability and court orders that could follow.

    As can be seen, the issues at stake are not simple. Drafting a good legislation is not easy. Having multiple stakeholders agreeing at all times may be even harder. What’s for sure is that Brazil urgently needs copyright reform. Brazil needs a copyright act that will foster creativity and remunerate authors, while at the same time providing access to education, culture, and knowledge, and also promoting a lively and competitive technology industry.

    All these must be done with one goal in mind: the sustainable socioeconomic development of the country.

    Pedro Paranaguá is an IP & Internet policy consultant with 10+ years experience. He has advised Brazil’s Ministry of Culture (Gilberto Gil’s mandate) in drafting the 2010 copyright draft bill, and has aided former Senator Mercadante (now Minister of Science, Technology and Innovation) in drafting the country’s cybercrime bill, and collaborated in the drafting of the country’s civil framework for the Internet. He is a Lecturer in Law at Fundação Getulio Vargas (FGV), and a doctoral candidate (on Brazil’s copyright reform) at the Duke University School of Law, where he has taught Brazilian Portuguese for Legal Studies. He holds a Masters in Law (cum laude) from University of London.

     

    Comments

    1. Manuela Colombo says:

      Interesting article! I wrote one related here on IP Watch as well: http://www.ip-watch.org/weblog/2010/07/15/brazil%E2%80%99s-discussion-on-copyright-law-reform-response-to-the-digital-era/


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    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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