New Law Targets Copyright Piracy

The battle against copyright piracy is one of today’s greatest challenges, considering that the losses incurred by this crime are significant and that piracy grows stronger as one of the pillars of organized crime.

In this context, the enactment in Brazil of Law 10,695 of July 01, 2003, which alters both the Criminal and the Criminal Procedure Codes in regard to copyright crimes, should be viewed as an important evolution.

The first evolution – and perhaps the most significant one – may have been the inclusion of offenses to neighboring rights in the Criminal Code. This inclusion follows the development of the issue, and the acknowledgement of the importance of neighboring rights in the Brazilian legal system.

It is interesting to note, however, that the legislator failed to include broadcasting organizations, which represent the third category of neighboring rights holders, together with performers and producers. Such inconsistency can already be seen at an international level where the 1996 WIPO Treaty, which addresses the digital agenda, deals with the rights of performers and producers only.

The minimum prison term stipulated by article 184 of the Criminal Code was increased from one to two years, but the maximum term was maintained. In other words, the legislator was eager to show that he considers the violation of copyright and neighboring rights a potentially offensive crime, but he could have been even more daring and also increased the maximum term.

Another interesting issue is the insertion of the notion of indirect profit. Previously, only the intention of profit was mentioned, which favored the interpretation that direct profit should be proved to characterize a crime. The legislator did not forget to address the issue of technological development. A new paragraph 3 to article 184 of the Criminal Code was inserted. Observing the modernity of the Brazilian Copyright Law (9,610/98), which has characterized as a crime the offering to the public, via cable, fiber optic, satellite, or any other system that allows the user to select a certain piece of work protected by copyright or related rights, and receive it at a scheduled time and place. Such scope allows some online violations to be forbidden at a criminal level.

However, contrary to what is stated in the Copyright Law, which, in a controversial disposition, limits the exception related to private use to the copy of only small parts of a work, Law 10,695 allows an entire intellectual work to be copied, as long as it is done only once and for private use.

Furthermore, various sections were included in the Code of Criminal Procedure. Among the most significant changes is the express authorization to seize the full amount of counterfeit items, together with all the equipment and support materials used to commit the offense. The law also determines that copyright holders should keep the seized products, and allows these items to be destroyed before the criminal action is finished, providing that some conditions are observed.

Finally, the law allows associations of copyright holders to act as prosecution assistants.

Far from perfect, this change in legislation is welcome and deserves praise. Now it remains to be seen if there will be a stronger effort by government authorities to better equip the Police and the Judiciary System, to allow an efficient enforcement of the law.