Brazil

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period 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
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? No
No provisions regarding competition or misuse of power.
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Has a court or tribunal ever limited the exercise of IP rights pursuant to 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.
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Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
Databases are protected.
CA, article 7°, XIII
Are rights holders prohibited from excluding user rights under copyright law? No
Is computer software excluded from the scope of patentable subject matter? Yes
There is no specification about that in Intelectual Property Law (L. 9.279/96), that disciplines patents. But computer software is protected by an specific law (Lei 9.609/08), that regulates this kind of creation as the Copyright Law does, with some differences. For exemple: moral rights are excluded from the scope of this law.
CSL

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? 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? In part
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
For EducationMay students copy works for private research or study? In part
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
CA
May educators copy works for use in the classroom? No
CA
OnlineAre 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
CA, articles: 22, 24, 28, 29
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? No
There are no safe-harbour or secondary liability provisions/decisions. There is no legislation containing any specific protections to ISPs.
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? Yes
Internet is free, in theory and according to the law. There is no filter or law that obligates the monitoring. However, several draft bills, that bring restrictions to the freedom, access and privacy, are being discussed in Legislature.
FC, article 5, IX and XII
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? Yes
This protection exists when consumers use protected works without profit finalities, and this creation does not prejudice the commercial exploration. But this protection is not full, because the reproduction must not be the main objective of the new creation.
CA, article 46, VIII
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? In part
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
By the pressIs 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? In part
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 quotations be used for any purpose? In part
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 LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? No
All uses depend on the author’s permission.
CA, articles 28 and 29
May librarians 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
Can lending libraries operate without incurring public lending rights fees to copyright owners? Yes
According to brazilian law, libraries work ilegally today, because it is necessary an authorization by author for any kind of distribution, such as selling, resale, rent and lending. Libraries - and secondhand bookstores - should pay copyright fees to owners, but it does not happen. If the right of distribution finished in the first sale of the book, this problem would be solved.
CA, article 29, VI
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? Yes
CA, article 46, I d
In public affairsAre 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 either excluded from copyright, or routinely shared under permissive licences? Yes
Nevertheless, there is no obligation about sharing governmental works under permissive licenses.
CA, article 8, IV
Are the results of publicly funded research required to be published under an open access licence? No
There is no law about publishing these works under an open access licence.
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Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? No
Brazilian law does not permit the dedication of works to the public domain. Public domain only exists after the protection period expires.
CA, articles 41, 45
Can public domain works be used without the need for any payment or registration of the use? Yes
The public domain works can be used freely. However, when someone makes arrangement, translation, adaptation or orchestration of public domain works, these new versions become are being protected.
CA, article 14
Does the law make special provision for the legal use of orphaned works? In part
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 of copyright works 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.
CA
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? 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. 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. Moreover, two draft bills are ongoing: the first one from São Paulo state, about open educational resources (PL n. 989/2011); and the second in Federal Congress, the National Education Plan, that encourages the use of free softwares and open educational resources (PL 8.035/2010 - http://bit.ly/jBDc0I)
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Are there national programmes or policies that specify or promote the use of open document formats? Yes
Since April 2008 ODF is a national standard in Brazil, coded as NBRISO/IEC26300.
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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. CP, article 184 and CA, articles 103 and 109
Is innocent infringement of IP treated differently by the law? 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 legal purposes? No
CA, article 107
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? 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 that the effect of TPMs distributed with copyright works be disclosed to consumers? No
Although circumvention devices are not expressly regulated, the alteration, removal or modification of TPM or rights management information is prohibited, even though the Consumer Defense Code determines the right to information as a basic right of consumers (CDC, article 6, III)
CA, article 107; CDC, article 6, III
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? No
It´s consensual that this kind of relief is not limited, with exception of prohibited injunction.
Resp STJ: 4183
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? In part
Federal Constitution determines the basic right of adversary proceeding (CF, article 5, XV). 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. The Copyright Act does not have this guarantee for consumers. The draft of reform of Copyright Act worsens this situation, because determines the sistem of "notice and take down", that allows the suspension of contents without judicial decision.
FC, art. 5, XV
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
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Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? No
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Is there provision to penalise the wrongful allegation of copyright infringement? Yes
The crime of libel is generally provided by Penal Code (article, 138). 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.
PC, article 138.
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
There is no provision about that, only general principles of Consumer Defense Code
CDC
Does the patent system allow for pre-grant opposition? Yes
IPL, articles 158, 159

Recent or upcoming changes

 

The Brazilian copyright law (Copyright Act) dates from 1998 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 1998 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.

It’s important to notice that a reform process of the Brazilian Copyright Act started, including the discussion with the society since 2004 and the opening of a draft bill to public consultation during 2010. The reform would be important to correct deficiences of the law and to balance the rights of authors and consumers. According to the reform project, the law would allow private copying, interoperability and other important limitations and exceptions. Moreover, there would be a state instance to supervise the collective management of copyright.

However, there is a new Ministry of Culture in our Government who has an opposite position to the reform of the Copyright Law. There is the real risk of stagnation of the process and, until now, despite the pressure of the civil society, the discussed draft bill was neither concluded and publicized nor sent to the Congress.

A new point about the draft bill is the diclosing that it provides the sistem of "notice and take down", that allows the suspension of contents in the Internet without adversaru proceedign and judicial decision. A simple notice of the owners (or their representatives) about an supost copyright infringment is enoguh to that. This provision is a threat to freedom ans access to knowledge in Internet.

 

Summary of position

 

The situation of copyright law in Brazil, in comparing with 2011 IP watchlist, is the same, refering to the text of the draft and provisions. The diference is the fact that the chances of the process of Copyright Act reform to be concluded are smaller than the last years. Ministry of Culture, which is in charge of leading this process, has a different understanding of the need to adapt the Law 9.610/98. Today, the draft bill is stagnated by the lack of consensus among the government's own Ministries. However, the civil society keeps on pressure by reforming. 

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