Internet and copyrights in Brazil

Letícia Vial and Marcos Henrique Leroy

Intellectual Property in Brazil is generally divided into two big groups:

Industrial property

It envolves works of utility, industrial and commercial character, and includes studies about trademarks and patents, among others;

Copyrights

Its a series of rights, with several implications at the context of the Internet. That is why we will focus mainly on them.

What are ‘copyrights’?

Copyrights are legal powers that aim to protect authors (whether individuals or companies) regarding intellectual works considered creations of human spirit, marked by originality in different ways. Thus, authors enjoy moral and economic rights when their creations are exploited. They can be books, theater plays, musics, softwares, paintings, photographs, etc. The protection afforded by copyright occurs by means of two rights:

Moral rights

They protect the personal relationship between the author and his work of art, reflecting prerogatives related to the own personality of creators, being untransferable and indispensable. The scope of this protection assures authors the right to have acknowledged his or her authorship of the work, with an obligation to have their name mentioned when the work is reproduced and/or executed. Also, it guarantees the right to maintain the creations’ integrity, to reject changes in the work and to forbid its use in situations they deem harmful to their work.

Property rights

They ensure the authors’ right to have a financial return for the work produced. This scope of copyright ensures the exclusive author’s right to use, enjoy and dispose of his own creations, being able, therefore, to trade them as they see fit. Authors can, in the exercise of these rights, authorize or forbid the reproduction, distribution, interpretation and public performance, broadcasting and public communication, translation, adaptation and creation of derivative works.

What are related rights?

Related rights, or neighbouring rights, are those derived from copyrights, but to protect, in their turn, the rights of those who perform artistic works. They are protected by these rights interpreters, performers, phonogram producers and broadcasters.

Legislation

In Brazil the legal provisions that provide protection for copyright are:

• The Law n. 9.610/98,  known as the Copyright Act – “Lei dos Direitos Autorais (LDA)”.
• The Law n. 9.609/98 (Software Act), which provides for computer program protection;
• Decree n. 75.699/73 (Bern Convention), which regulates the protection of literary and artistic works;
• Decree n. 57.125/65 (Rome Convention), which deals with related rights;
• Decree n. 1.355/94 (TRIPS), which is the Agreement on Trade-Related Aspects of Intellectual Property Rights.

And what does this have to do with Internet?

In much of the world, including Brazil, the protection of intellectual property is based on a system built from the perspective of the twentieth century, in which the laws did not predict a number of situations that arose only after technological change brought about by the Internet.

With the popularization of the Internet and the means of information access, the spread and sharing of materials protected by copyright, such as movies, books and music, became much easier. Due to the high speed of unauthorized spread of such goods, it is difficult to maintain a protection or effective control, being common its free sharing in streaming sites, like YouTube, or in sites that offer free download.

To deal with new situations, treaties came into force by means of international cooperation, such as the Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), administraded by World Intellectual Property Organization (WIPO).

The WCT relates to the protection of authors of literary and artistic works, such as manuscripts and computer programs; original databases; musical works; audiovisual works; works of art and photographs, as the WPPT deals with the protection of related rights of performers and phonogram producers.

According to WIPO:

The aim of both treaties is to update and supplement the major existing WIPO treaties on copyright and related rights, particularly in order to respond to changing of technology and market. (…) Among other things, both the WCT and the WPPT were made to face the challenges posed by digital technologies, in particular the dissemination of protected material over digital networks like the Internet. For this reason, they are often referred as “web treated”.

In Brazil, in the Civil Rights Framework for the Internet, the article 19,  §2º, cites copyrights. According to this article:

Art. 19. In order to ensure freedom of expression and prevent censorship, the internet applications provider can only be civilly liable for damages arising from content generated by third parties if, after specific court order, do not take measures to, within the framework and technical limits of their service and within the indicated time, make unavailable the content appointed as infringing, saved the contrary legal provisions […] 19.2: The application of this article to infringement of copyright or neighboring rights depends on specific legal provision, which must respect freedom of expression and other guarantees provided  in art. 5 of the Federal Constitution..

One of the celebrated cases involving copyright and Internet involves the site Pirate Bay, which runs through the file-sharing model on the Internet, making them available for download through P2P system, where there is no work of a server. Files are shared by other users, called peers – usually using BitTorrent.

Pirate Bay allows users to download movies, music, games, software, among others, but does not store any material nor obtain profit by downloading, but by advertising (almost 70,000 dollars a month). Therefore, they claimed to not infringe copyrights, because any content protected by copyright was stored on the site, which was not, theoretically, accountable for the linked material. But would they not be complicit in facilitating file-sharing?

The field of discussion related to copyright and Internet is vast because these rights are constantly reinterpreted to fit the immaterial world brought by the worldwide web. Debates such as the Creative Commons, a public consultation promoted by the Brazilian government on copyright in the digital environment, among others, are increasingly present not only in academia but also, and especially, in our daily lives.

Sobre os autores

Letícia Alves Vial is an undergraduate student in Law at Universidade Federal de Minas Gerais and a member of Grupo de Estudos Internacionais em Internet, Inovação e Propriedade Intelectual (GNet). Is interested in intellectual property, Law, innovation, International Private Law and International Public Law. Is currently an intern at a law firm specialized in intellectual property.

Marcos Henrique Costa Leroy is an undergraduate student in Law at Universidade Federal de Minas Gerais and a member of Grupo de Estudos Internacionais em Internet, Inovação e Propriedade Intelectual (GNet) and Grupo de Pesquisa em Direito Econômico (GPDE). Studied at Université de Lille II – Droit, France, subjects such as Copyrights, Economic Law, and Economic Crime Analysis. Is currently an intern at a law firm specialized in intellectual property.