A wasted opportunity

by Rodrigo Borges Carneiro

June 23, 2014


Rodrigo Borges Carneiro

After several years under discussion the Civil Rights Framework for the Internet has finally been approved at the National Congress and sanctioned by President Dilma Rousseff.

The importance of the Internet nowadays is undeniable and the Civil Rights Framework deals with many sensitive issues such as the protection of the privacy and of the personal details of the users, the assurance of freedom of expression and neutrality of the web.

In dealing with a type of "constitution for the Internet", however, the approved text falls short in not expressly listing respect for copyright among those rights which should regulate control of the use of the Internet in Brazil.

One cannot deny the fact that much of the appeal and usefulness of the Internet is based on the transmission and access to content which is capable of being protected by copyright and Intellectual Property rights that are the fruit of the creativity of authors and investment by titleholders throughout the world.

They are literary, photographic, musical, audiovisual and multimedia works, computer programs, applications and games that entertain, educate and enrich the lives of thousands of users every day.

Without this content the network would lose much of its usefulness and become essentially an enormous international network of empty servers and connection terminals.

Thus, it seems inconceivable that the Civil Rights Framework for the Internet does not incorporate into its principles a general clause with respect to the rights of Intellectual Property alongside the other principals explicitly provided in article 3.

Regardless of the debate on the limits of protection that copyright deserves, which should be locked into the scope of the reform of the specific law for copyright, the Civil Rights Framework for the Internet should not ignore the need to respect copyright and Intellectual Property rights as a fundamental premise so that the web might be constructed on an ethical basis.

Without further counting the fact that the Civil Rights Framework also has an "educational" function, of transmitting to the population the principles that should govern the use of the web and that, in view of the relevance of the works protected by copyright for the functioning and usefulness of the network for its users, this omission represents the loss of an important opportunity to educate the population on respect for copyright and intellectual property rights.

Just as important as this is the risk of the Judiciary understanding that Intellectual Property rights within the scope of the internet must be dealt with as "second line rights" which are less relevant than the other principles that are expressly contained in article 3 and that in cases of conflict they should almost necessarily cede to these, when this analysis must be carried out with great deal of care and balance.

This omission seems to have been an option of the legislator based on a clumsy understanding that Intellectual Property is a hindrance, an obstacle to innovation and to the participative nature of the web.

The omission is also not justified by the argument that copyright is included in the general expression set forth in the sole paragraph of article 3 that the explicit principles in this Law do not exclude others.

If this were the case, the other principles cited in article 3 would also not deserve a express mention in the Civil Rights Framework, since it is already governed in the legal system.

The inclusion of the principle of respect for copyright and for Intellectual Property rights would not make the web any more or less free, nor would it make access to information, knowledge and innovation any more difficult, very much to the contrary.

This opportunity now having been lost will make it even more important that a review the Copyright Law might show special attention to the Internet.



Rodrigo Borges Carneiro

Advogado, Agente da Propriedade Industrial

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