Brazil

Thu, 05/03/2009 - 04:31 — Diogo Moyses

Legal background

Copyright legislation	Copyright Act ("CA") From http://www.wipo.int/clea/en/text_html.jsp?lang=en&id=514
Other relevant laws	Criminal Code ( 'Código Penal' ) ("CP") From http://www.planalto.gov.br/CCIVIL/Decreto-Lei/Del2848.htm
	Consumer Defence Code ( 'Código de Defesa do Consumidor' ) ("CDC") From http://www.mj.gov.br/dpdc/data/Pages/MJ7E3E5AAEITEMID736B189700174E618C00EF8DA58...
	Copyright (Software) Law ("CSL") From http://www.wipo.int/clea/en/text_html.jsp?lang=EN&id=513
	Industrial Property Law ("IPL") From http://www.wipo.int/clea/en/text_html.jsp?lang=EN&id=515
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention?	NO Literary and artistic works are protected for 70 years from the author's death. Audiovisual and photographic works are protected for 70 year from first publication.	CA, article 41 and 44
Must a work be fixed in some material form before copyright attaches?	NO	CA, article 7
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power?	NO No provisions regarding competition or misuse of power.
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	NO There are a few constitutional articles that may apply to these cases. Even though, establishing this relation would require a big interpretative effort. There are no specific provisions or decisions in which copyright is regarded as a form of stifling protected speech or so.
Does the compilation of a database of non-original material fall outside the scope of copyright?	NO Databases are protected.	CA, article 7°, XIII and article 87
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	NO

Freedoms to access and use

By Home Users	Is there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria?	NO Brazilian law does not allow a whole copy even for non-commercial purposes.	CA, articles 28, 29 and 46
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	NO Brazilian law do not allow a whole copy even for non-commercial purposes.	CA, articles 28, 29 and 46.
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	NO Brazilian law do not allow a whole copy even for non-commercial purposes.	CA, articles 28, 29 and 46.
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	LIMITED The stage and musical performance is permitted when carried out in the family circle or for exclusively teaching purposes in educational establishments, and only if devoid of any profit-making purpose.	CA, Article 46, VI
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	YES
For Education	Is reproduction permitted for the purposes of research or study?	LIMITED The only permissions are stage and musical performances if devoid of any profit-making purpose as noted above, quotations for the purposes of study, criticism or debate as noted below, and notes taken in the course of lessons given in teaching establishments by the persons for whom they are intended.	CA, Article 46, III, IV and V
	Does any such research and study provision cover distance and online education?	NO	CA, articles 28, 29 and 46
	May translations of works be made for educational purposes?	NO
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	NO
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	LIMITED There are no provisions regarding hyperlinking in Brazilian law.
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	NO All uses depend on the author’s permission. There are no exceptions permitting temporary or transient copies.
	Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances?	NO There are no safe-harbour or secondary liability provisions/decisions. There is no legislation containing any specific protections to ISPs.
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	YES
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	LIMITED The success of copyright owners in obtaining subpoenas to release users' identities has been mixed.
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	NO All uses depend on the author’s permission.	CA, Articles 28 and 29
	May computer software be reverse engineered for the purpose of creating interoperable software?	LIMITED Integration of a program into an application or operating system, retaining its essential features, is not a copyright violation, as long as it is technically indispensable for the user, and for exclusive personal use.	CSL, Article 6, IV
	Is the incidental inclusion of a work in other material permitted?	YES However, the law is extremely confused, permitting different interpretations.	CA, Article 30, § 1
	Is there are copyright exception for parody or satire?	YES	CA, Article 47
	Do creators who license their work retain the moral right of attribution?	YES	CA, Article 27
By the press	Is there a copyright exception for the news of the day?	YES With mention of the name of the author, if signed, and of the publication from which the article has been taken.	CA, Article 46, I
	May copyright material be reproduced for the purposes of review and criticism?	LIMITED Only quotations are permitted, for the purposes of criticism or debate, to the extent justified by the purpose and with necessary acknowledgement.	CA, Article 46, II
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	YES	CA, Article 8, IV
	May quotations be used for any purpose?	LIMITED Quotations are permitted for the purposes of study, criticism or debate, to the extent justified by the purpose and with necessary acknowledgement.	CA, Article 46, II
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	NO All uses depend on the author’s permission.	CA, Articles 28 and 29
	May libraries copy works for users for the purpose of research or study?	NO All uses depend on the author’s permission.	CA, Articles 28 and 29
	Are libraries allowed to make preservation or archive copies of materials in their collections?	NO All uses depend on the author’s permission.	CA, Articles 28 and 29
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	NO	CA, Articles 28 and 29
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	YES	CA, Article 46, I d
In public affairs	Are laws excluded from copyright?	YES However, there are technical regulations provided by a private organization named Brazilian Association of Technical Rules (ABNT – Associação Brasileira de Normas Técnicas) that are enforced by law (consumer protection law) and that are protected by copyright.	CA, Article 8, IV - Exception:CDC, article 39, VII
	Are other governmental works excluded from copyright?	YES	CA, Article 8, IV
	Is there a copyright exception for use of material in judicial proceedings?	YES	CA, Article 46, VII
	Are the results of publicly funded research required to be published under an open access license?	NO

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	Criminal: Imprisonment for up to 4 years, and Civil: the value of 3.000 copies when the number of copies constituting a fraudulent edition is unknown, and a fine corresponding to 20 times the value that should be paid when public performance is carried out in violation of CA provisions.	CP, article 184 and CA, articles 103 and 109
What is the maximum penalty for copyright infringement for a corporation?	No distinction. Only civil penalties are applicable for corporations.
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	YES Commercial use infringement is penalized more heavily.	CP, article 184
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright?	NO	CA, Article 107
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	YES The supply of such circumvention devices is not forbid by law in any case, but may be understood as a violation in an over-restrictive interpretation.	CA, article 107
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material?	NO Although circumvention devices are not expressly regulated, the alteration, removal or modification of TPM or rights management information is prohibited.
Are the operations of copyright collectives subject to public oversight?	LIMITED The failure to disclose a material limitation on the functionality of goods could infringe the consumer right to be informed of the correct specifications of those goods.	CDC, article 6, III
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online?	NO The Escritório Central de Arrecadação e Distribuição (ECAD) receives the accounts of member collecting societies, but is itself a private organisation.
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	NO
Is there provision to penalise the wrongful allegation of copyright infringement?	YES ISPs have cooperated with copyright owners in the removal of infringing hosted material, but there is no institutionalised arrangement for users to be punished for infringements.

Conclusions

The Brazilian copyrightⁱ law dates from 1996 and has not been updated to reflect the dissemination of the Internet and Information and Communications technologies.

Therefore, the law is outdated in many aspects, since it does not address many of the actual challenges of the digital age. This obsolete framework stifles the development of new business models that explore more efficiently the distribution ease created by technology. More than this, the absence of an adequate law to the digital age obligates the enforcement of the Copyright Act as if the distribution processes and easiness to reproduce have remained the same.

Besides that, the Copyright Act of 1996 is much more restrictive than the previous Brazilian copyright law, which dates from 1973. As an example, the 1973 law permitted the private copy devoid of profit-making purposes and limited the copyright extension to 60 year after the author’s death.

Furthermore, it is well known that, in comparison with many other international laws, the chapter of the Brazilian law that provides limitations and exceptions to the author’s rights (copyright) and contains access to knowledge provisions is considered by many as insufficient, having no exceptions to address, for example, the necessity of preservation of a work in deterioration process.

Even so, it’s important to notice that Brazil is towards the end of a major debate process conducted by the Ministry of Culture to amend its copyright act. Probably by March, 2009, a new copyright act bill will be presented in Congress by the Federal Government. Its content, however, is still unknown and, therefore, impossible to evaluate.

This work is licensed under a Attribution Share Alike Creative Commons license

May copyright works be freely offered for commercial rental?	NO All uses depend on the author’s permission.	CA, Articles 28 and 29
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment?	NO Brazilian law does not permit the dedication of works to the public domain. Public domain only exists after the protection period expires.
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain?	LIMITED Brazilian law determines that shall pass into public domain works of unknown authors and of authors deceased without heir. There are no provisions about the use of works when it's impossible to locate the copyright owner after a diligent search.	CA, Article 45, I and II
Is parallel importation permitted?	YES There is no prohibition on the parallel importation of copyrighted works. However, there is no legal provision of parallel importation of copyrighted works. There are no provisions about the use of works when it's impossible to locate the copyright owner after a diligent search.
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy?	YES The Brazilian Government passed in 2003 a Decree orienting the government to adopt free software. More on: http://www.iti.gov.br/twiki/bin/view/Swlivre/WebHome and http://www.planalto.gov.br/ccivil_03/DNN/2003/Dnn10007.htm.
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy?	LIMITED Recently Petrobrás, the Brazilian petroleum company, which supports many cultural projects, informed that would prefer to select works projects that authorize some uses of the work to the general public, using, for example, CC licenses.
Are there specifications or incentives in national law/policy for the use of open document formats?	YES Since April 2008 ODF is a national standard in Brazil, coded as NBRISO/IEC26300.