by Attilio Gorini
September 01, 2008
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Brazil’s Copyright Act, Law No. 9,610, has been in effect for ten years as of February 19th of this year. There have been many developments during that time, and many more are on the horizon. Even though the legislation is quite new, the Ministry of Culture is already pushing for radical changes.
A little over ten years ago Brazil operated under Law No 5,988, of December 14, 1973. Although it contains some sound provisions, the law did need overhauling: it was created under the military regime, and the wording in many articles lacked the elasticity needed to embrace new technologies.
The 1998 legislation, the fruit of negotiations in the wake of the 1988 Federal Constitution, was a response to the shortcomings of the 1973 law. In 1998, use of the Internet to market and disseminate works was still timid, but lawmakers wisely armed the law for the future, using far-reaching, comprehensive wording able to stand the test of time.
Copyright Act’s applicability to today’s needs is demonstrated by its explicit mention of satellite transmission (Art. 5, Items II and XII), permanent or temporary storage by electronic means (Art. 5, Item VI), the fixation of works on any support, tangible or intangible (Art. 7), and technical devices to prevent or limit copying of them (Art. 107, Item I). Today, such wording is readily applied to digital transmission via satellite, storage in cache memory or virtual HDs and the controversial Digital Rights Management.
One of the most hotly debated points in the law of 1998 was that it established that only short extracts from works could be reproduced, provided this was done without intent of obtaining profit. The law of 1973 authorized the making of complete copies. This limitation, together with the lack of definition as to what constitutes a “short extract,” sparked considerable discussion about how restrictive the Copyright Act would be. In practice, though, this restriction does not prohibit – nor was it meant to – complete copies for one’s own use, provided the original was acquired legally by the person making the copy. However, it does prohibit unrestricted, uncontrolled copying, for example of didactic material, a practice which has exposed writers to risk for some time.
One sorely felt omission in the Copyright Act concerned works made for hire, which were included in the 1973 Act and in the Software Protection Act, promulgated on the same date as the Copyright Act. With this, any works created under labor or service contracts had to be regulated under specific assignment agreements, complying with the numerous rules of Copyright Act’s Article 49. This made for top-heavy – and unnecessary – bureaucracy, that initially burdened the contracting companies.
Today, however, the situation has been streamlined as contracting parties and employers have become used to the need of express authorizations or assignments. Today, ten years later, we see a solid law growing stronger. However, the Ministry of Culture (MinC) shows no signs of letting it rest. Early last year the MinC inaugurated the National Copyright Forum, which defends major “flexibilization” of the law.
During the Forum’s first session, on December 5, 2007, all the speakers shared the government’s position. The partial and unilateral nature of the discussions sparked serious protests from copyright holders, both individuals and legal entities. And it didn’t stop there: in the subsequent months, the government made official its intention to “flexibilize” the law when former Minister Gilberto Gil (who left office July 30, 2008), said he wanted to: (1) redefine the role of the State with regards to copyrights, among other things increasing its intervention in disputes related to them; (2) rethink the Copyright Act’s chapter on fair use, allowing copies of the entirety of the works and access to works by the handicapped and others; and (3) make authors (individuals) assume control of utilization of their works, preventing definitive and total assignment of rights (source: O Globo, 06/22/2008, p. 17).
On July 30 and 31, 2008, eight months after the first Forum, the government organized a second session, this time relenting to pressure for more bilateral discussion. However, despite a few excellent presentations, the integrity of debate was compromised when audience members allowed emotion to override reason during the event.
Recently, on the 27th and 28th of August, the third edition of the Forum took place in São Paulo. Despite a tamer audience, several fundamental pillars of the law were incorrectly transmitted by the speakers as absolute truths, which has the potential of generating unrealistic comprehension of the law by the laymen. The impossibility of intervention by the audience with the use of microphones only aggravated the situation as the attorneys present to the event could not correct what was being said.
In truth, the Federal Government wants to modify a law that works and is perfectly suited to today’s world. Although it is too early to effect changes, discussions – provided they are carried out with integrity – are always welcome. What is needed, however, is effective involvement by all sectors that create, produce and use copyright protected content, so that proposals inconsistent with the actual market are nipped in the bud.