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

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 here – Portuguese 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.