Statute of Limitation in the new Brazilian Copyright Act

The Copyright Act (law no. 9610/98), as approved by the Congress, provided in its article 111 that the term for filing a civil action against copyright infringement would be of five years, as from the date on which the titleholder of the right would become aware of the infringement. Such article, however, has been vetoed by the President. Therefore, the law in force does not provide on the statute of limitation in such cases.

Thus, it is necessary to look for a legal provision to replace such lack caused by the veto to article 111 by evoking legislation prior to law 5988/73, which provided on copyright related matters, and was expressly revoked by law 9610/98.

Law 5988/73, however, did not expressly revoke the previous legislation that provided on the matter, thus leading to doubts or confusion as to issues on the statute of limitation for bringing civil actions for copyright infringement.

There is the understanding that in the absence of an express reference, law 5988 kept in force the articles of the Civil Code on the matter, but there is also another understanding according to which the law tacitly revoked the chapter of the Code that ruled on copyrights, for it provided on the same matter.

The matter remained without any specific regulation, leading to three diverse interpretations. It is possible, for instance, to resort to the general rule of the Civil Code, which foresees, in its article 179 c/c article 177, a 20-year term. There is also a thesis that distinguishes the author’s equity rights from his moral rights, and takes into consideration two different offenses. While the term for offense to moral rights shall be perpetual, as to economic rights the terms of 10 or 15 years must be respected, depending on the situation, as provided in articles 177 and 179 of said Civil Code.

On resorting to the thesis that considers the term provided by article 178, § 10, item VII to be in force, the statute of limitation shall be of five years, as from the infringement date. Such thesis is likely to prevail, although it constitutes a rather simplistic solution to the issue, while discarding the innovation proposed by the legislator in the vetoed article 111, which established that the term should start as from the date on which the titleholder of the rights would become aware of the infringement.