José Henrique Vasi Werner
Partner, Lawyer, Industrial Property Agent
He has a postgraduate degree in Criminal Law and Criminal Procedure from Estácio de Sá University. He is legal Dire[...]read +
by José Henrique Vasi Werner
August 07, 2019
It is undeniable that the progress of technology has been demanding constant improvement in legislation, especially when this technology allows third parties to misuse it or obtain unlawful advantages. Recent studies show that in 2018 alone piracy in various sectors of the industry brought about a loss of R$ 193 billion apart from all the taxes not collected due to the tax evasion that is typical for this criminal activity.
According to a recent publication in the famous Brazilian magazine EXAME, in 2016 more than 2 billion illegal downloads were made by users from a group of 190 websites specialized in illegal content. The topic shifts to another dimension when the broadcasting of sporting events – or sportscast – is analysed, since this market itself can attract billions of consumers worldwide, whether through traditional broadcasting media or streaming platforms.
In Brazil alone, the period between January and June 2018 registered 1.3 million visits to the 10 largest websites providing illegal content, thus evidencing the amount of illegal data frequently received via streaming or download by users. Brazilian Legislation, although imperfect, establishes different forms of protection for rights’ holders. Indeed, the illegal broadcasting of sports events may concomitantly violate various law sections, from Copyright Related Rights, passing through Broadcasting Rights up to Image Rights.
Related Rights are those recognised by the Brazilian Legislation for certain categories that assist in the creation, production or dissemination of a particular work protected by Copyright.
Companies that broadcast sporting events, for example, if duly authorised by the Copyright owner, are some of the beneficiaries of such rights, which may be enforced against third parties who redistribute the signal or disseminate the same event without permission.
In cases of violation of Related Rights, in addition to the possibility of seeking repair of material and moral damages suffered due to the unlawful act being committed, rights’ holders may also seek the conviction of the offenders in the criminal arena, since Article 184 of the Criminal Code determines imprisonment penalties varying from three months to four years, depending on the type of crime committed.
Nevertheless, Article 105 of Law 9,610/98 lays down that broadcasts in violation of such rights shall be suspended immediately or interrupted by the competent judicial authority, under penalty of a daily fine.
Parallel to the violations of the Copyright Law, the illegal broadcasting of sports events may also violate the Broadcasting Rights, set out on Article 42 of Law 9,615/98 (Pelé Law), which consists on the exclusive prerogative of the entity practising the sport to negotiate the rights to broadcast the sports events in which it takes part.
Broadcasting rights guarantee sporting entities legal protection in respect of illegal broadcasts, except for the display of instant (shots) from the sports event exclusively for the purposes of journalism, sport or education, or to attract legal betting, provided that a maximum of 3% of the entire event, in accordance with the provisions of §2 and items of Article 42 of the Pelé Law, are respected.
As if that were not enough, the unauthorised broadcasting of sports events may also violate the Image Rights of the athletes involved and these rights have Constitutional prominence, in accordance with Article 5, XXVIII, “a’ of the Constitution of the Federative Republic of Brazil.
While the Rights mentioned above are owned by the broadcasters of the event (Copyright Related Rights) and the sporting entities involved (Broadcasting Rights), Image Rights are owned by the framed individuals, who have their images unduly disseminated.
Despite the relative effectiveness of the legislation, the absence of surveillance and enforcement mechanisms considerably weaken the fight against this type of piracy.
Accordingly, in order to seek increased effectiveness in repressing these criminal activities, some legislative proposals are in course before the National Congress, with special mentions to Bills nos. 239/2007 and 169/2017, both still under analysis before the Federal Senate.
Draft Law no. 239/2007 seeks to broaden the list in §3 of Article 155 of the Criminal Code, typifying as simple theft (with a sentence of one to four years’ imprisonment), the conduct of those who unduly capture and/ or reproduce any broadcasting signal, or any other form of energy or signal that has economic value, further qualifying that the sentence is increased by up to 8 years’ imprisonment and a fine when this conduct takes place for profit.
On the other hand, recent Draft Law no. 169/2017 proposes that the Judiciary may determine the suspension or blocking of internet websites or applications that encourage or promote crimes being committed. If approved, the closing down of the activities of websites and applications that make pirated content available on the Internet may be determined.
Finally, it should be mentioned that, due to the exponential increase of piracy of sportscasts, Brazilian Authorities, together with Rights’ holders, must be even more aligned in order to promote educational efforts, reform and update existing legislation, and, of course, invest and coordinate multiple enforcement operations against offenders. Only if this is well done we can pass on to future generations the message that the protection of intellectual property rights has always been and always will be the best path.