4.5. Copyright of Works Created and Broadcast in Digital Environment

4.5. COPYRIGHT AND ITS FORMS OF PROTECTION
4.5.1. Introduction

It is an undisputed fact that Copyright is part of people’s everyday lives, even though not everyone is fully aware of it. To illustrate: whenever we take a selfie, record a video on a smartphone, or create a text or drawing for an Internet page, we are producing an intellectual work. Likewise, we make use of works and content protected by Copyright and related rights whenever we read a book, watch a play or a movie, listen to music, or use computer software.

As a result of copyright protection, an important principle is that not all content available, whether in physical form or through digital media, may be used indiscriminately, since copyright protection is independent of the medium in which the content was created or the format on which it has been recorded.

Accordingly, as is the case in other countries, the use of a copyrighted work in Brazil generally requires the authorization of the copyright holder, except in certain circumstances, as discussed below, otherwise it may constitute a civil and/or criminal offense.

This chapter aims to provide prospective investors in Brazil with a concise overview of the country’s copyright framework, including, for example, what the law considers eligible for protection, what is not afforded legal protection, and the consequences of Copyright infringement.

4.5.2. Overview of Copyright

There are two principal systems of copyright protection: (i) copyright, which originated where the law is of Anglo-Saxon origin, and is based on utilitarian principles and economic considerations; and (ii) droit d’auteur, derived from French law and adopted in Brazil, under which copyright is divided into economic rights and moral rights, as discussed below.

In Brazil, copyright is governed by the 1988 Brazilian Federal Constitution (Article 5, items XXVII and XXVIII), Federal Law No. 9,609 dated February 19, 1998 (“Software Law”), which governs the intellectual property rights in computer programs, Federal Law No. 9,610 dated February 19, 1998 (“Copyright Law”), which generally regulates Copyright protection, as well as other specific legislation depending on the subject matter.

Under the Copyright Law, the creator of an intellectual work is guaranteed protection of both moral rights and economic rights. These rights may be summarized as follows:

1. Economic Rights: These relate to the author’s ability to commercially exploit the work. They entitle the rights holder to obtain financial compensation in exchange for the use of the work by third parties. Economic Rights are directly associated with the use, enjoyment, and commercial exploitation of the work. In this context, the author has the prerogative to assign such rights, on a permanent or temporary basis, upon execution of a license agreement. Accordingly, Economic Rights are transferable, subject to the limitations set forth in Article 49 of the Copyright Law, including the requirement that the transfer be expressly provided for in a written agreement; and
2. Moral Rights: These arise from the intellectual creation itself and are intrinsically linked to the author’s personality. Accordingly, they are personal in nature, perpetual, inalienable, non-waivable, and not subject to attachment or execution. The author’s Moral Rights are set forth in Article 24 of the Copyright Law and include, without limitation, the right to claim authorship of the work at any time and the right to have the author’s name identified or acknowledged whenever the work is used.

Unlike Moral Rights, Economic Rights are not perpetual. Accordingly, upon expiration of the statutory term, the work enters the public domain, and its use becomes unrestricted, with no requirement to obtain authorization from, or make payment to, the copyright holder. Under the Copyright Law (Article 41), an author’s Economic Rights remain in force for 70 years as from January 1 of the year following the author’s death, in accordance with the order of succession set forth under Brazilian civil law. In the case of computer programs, to which moral rights do not apply, the Software Law (Article 2, Section 2) provides protection for 50 years as from January 1 of the year following their publication or, if unpublished, their creation.

In this context, Copyright protects works; that is, intellectual creations expressed by any means or fixed in any medium, whether tangible or intangible. By way of illustration, Article 7 of the Copyright Law lists the following among the works eligible for copyright protection:

1. Literary, artistic, and scientific works;
2. Lectures, addresses, sermons, and other works of a similar nature;
3. Dramatic and musical-dramatic works;
4. Choreographic works and pantomimes, provided that their performance is fixed in writing or by any other means;
5. Musical compositions, with or without lyrics;
6. Audiovisual works, whether or not accompanied by sound, including cinematographic works;
7. Photographic works and works produced by any process analogous to photography;
8. Drawings, paintings, engravings, sculptures, lithographs, and works of kinetic art;
9. Illustrations, maps, and other works of a similar nature;
10. Plans, sketches, and three-dimensional works relating to geography, engineering, topography, architecture, landscape architecture, stage design, and science;
11. Adaptations, translations, and other transformations of original works, provided that they constitute new intellectual creations;
12. Computer programs;
13. Collections or compilations, anthologies, encyclopedias, dictionaries, databases, and other works which, by reason of the selection, arrangement, or organization of their contents, constitute an intellectual creation.

On the other hand, Article 8 of the Copyright Law sets forth what is not subject to copyright protection, including:

1. Ideas, normative procedures, systems, methods, plans, or mathematical concepts as such;
2. Schemes, plans, or rules for performing mental acts, playing games, or conducting business;
3. Blank forms intended to be completed with any type of information, whether scientific or otherwise, and the instructions for their completion;
4. The texts of treaties or conventions, laws, decrees, regulations, judicial decisions, and other official acts;
5. Information in common use, such as calendars, diaries, directories, or captions;
6. Names and titles in isolation; and
7. The industrial or commercial exploitation of the ideas embodied in works.

It should be noted that Article 11 of the Copyright Law provides that the author is always the natural person who creates the literary, artistic, or scientific work, and that the protection afforded to the author may extend to legal entities in the cases provided for by law.

With respect to the use of a protected work, such use is necessarily subject to the author’s prior express authorization. Article 29 of the Copyright Law provides examples of the possible forms of exploitation of a protected work, including:

1. Partial or complete reproduction;
2. Editing;
3. Adaptation, musical arrangement, and any other transformations;
4. Translation into any language;
5. Inclusion in a phonogram or audiovisual production;
6. Distribution, where such distribution is not inherent in the agreement entered into by the author with third parties for the use or exploitation of the work;
7. Distribution of works or productions by cable, optical fiber, satellite, waves, or any other system that enables users to select a work or production for access at a time and place previously determined by the person making the request, and in cases where access to the works or productions occurs through any system involving payment by the user;
8. The direct or indirect use of literary, artistic, or scientific works through: (a) Performance, recitation, or declamation; (b) Musical performance; (c) The use of loudspeakers or analogous systems; (d) Radio or television broadcasting; (e) Reception of broadcast transmissions in venues open to the public or other places of collective attendance; (f) Ambient sound system; (g) Audiovisual or cinematographic exhibition, or exhibition by any similar process; (h) The use of artificial satellites; (i) The use of optical systems, telephone lines (wired or wireless), cables of any kind, and similar means of communication that may be adopted; (j) The public display of works of fine art and figurative art;
9. Inclusion in a database, storage in a computer, microfilming, and other similar forms of archiving;
10. Any other existing or future forms of exploitation that may be developed or invented.

Brazil’s copyright protection regime provides that intellectual works are protected from the moment of their creation, regardless of registration. Nevertheless, Article 19 of the Copyright Law provides that the author may, at their discretion, register the work with the competent public authority. For computer programs, the competent authority is the Brazilian National Institute of Industrial Property (INPI), while, for other intellectual works, registration is generally made with the National Library. Although registration is not mandatory, it is important because it serves as evidence of priority in the event of a dispute concerning authorship of the work.

However, copyright protection is subject to certain exceptions. In this regard, Article 46 of the Copyright Law sets forth the acts that do not constitute Copyright infringement. Therefore, the following acts do not constitute copyright violations:

1. Reproduction: (a) In daily newspapers or journals, of news reports or informative articles previously published in newspapers or journals, provided that the author’s name, where identified, and the source publication are acknowledged; (b) In newspapers or journals, of speeches delivered at public meetings of any nature; (c) Of portraits or other representations of a person’s image that were commissioned, where the reproduction is made by the owner of the commissioned work, provided there is no objection from the person depicted or his/her heirs; (d) Of literary, artistic, or scientific works, exclusively for the benefit of persons with visual impairments, provided that such reproduction is made on a non-commercial basis using Braille or any other accessible format or medium intended for such users;
2. The reproduction, in a single copy, of short excerpts of a work for the copier’s private use, provided that the copy is made by the copier and not for profit;
3. The quotation in books, newspapers, magazines, or any other means of communication, of excerpts from any work for purposes of study, criticism, or commentary, to the extent justified by the intended
   purpose, provided that the author’s name and the source of the work are indicated; The taking of notes of lectures in educational institutions by the students to whom the lectures are addressed, provided that such notes are not published, in whole or in part, without the prior express authorization of the lecturer;
4. The use of literary, artistic, or scientific works, phonograms, and radio and television broadcasts in commercial establishments exclusively for demonstration purposes to customers, provided that such establishments market the media or equipment necessary for their use;
5. Theatrical performances and musical performances carried out within the family circle or, exclusively for educational purposes, in educational institutions, provided that there is no profit motive in either case;
6. The use of literary, artistic, or scientific works for the purpose of producing evidence in judicial or administrative proceedings;
7. The reproduction, in any work, of short excerpts from preexisting works of any nature, or of an entire work in the case of works of visual art, provided that the reproduction itself is not the primary purpose of the new work and does not interfere with the normal exploitation of the reproduced work or cause unjustified prejudice to the legitimate interests of its authors.

Likewise, Article 47 of the Copyright Law provides that paraphrases and parodies are freely permitted, provided that they do not constitute true reproductions of the original work or bring it into disrepute.

It should be noted that Article 4 of the Copyright Law provides for the restrictive interpretation of legal transactions concerning copyright. Accordingly, even where the copyright holder has authorized the reproduction of a work in one type of physical medium, its reproduction in a different medium or in digital format requires the copyright holder’s new express authorization. For this reason, it is always particularly important that agreements be as detailed and comprehensive as possible when defining the scope of the authorization to reproduce or otherwise use a copyrighted work.

Finally, another issue that has been widely debated in the field of copyright law is the creation of works through artificial intelligence. Among other issues, there is ongoing discussion as to whether an artificial intelligence system may be regarded as the author of a work.

Pursuant to Article 11 of the Copyright Law, “the author is the natural person who creates a literary, artistic, or scientific work”, and the protection granted to such author may “apply to legal entities in the cases provided for by this Law,” such as where Article 89 extends its application, as appropriate, to the rights of broadcasting organizations, and Article 95 defines the rights afforded to such organizations, among others.

In our view, this legal framework precludes the possibility of an artificial intelligence system independently holding copyright. Furthermore, under the current Brazilian legal system, there is no statutory provision recognizing legal personality or authorship for artificial intelligence systems.

What has been observed, however, is the use of artificial intelligence as an auxiliary tool in the human creative process. In such cases, copyright protection may be recognized, provided that there is an effective human intellectual contribution to the final work.

Nevertheless, much remains to be discussed and developed in this area. This is, without question, a controversial issue that is likely to be the subject of future legislation and the development of consistent judicial precedent.

4.5.3. Consequences of Copyright Infringement

Brazilian law grants holders of intellectual property rights the exclusive right to use and exploit their creations, works, and inventions. As noted above, no third party may use such protected subject matter without the prior express authorization of the rights holder. Otherwise, the infringing party may be subject to legal sanctions.

Therefore, in cases of copyright infringement, the copyright holder may seek compensation for the damages suffered, whether economic and/or moral, pursuant to the Copyright Law (Article 101 et seq.), the Brazilian Civil Code (personality rights), the Brazilian Penal Code (Article 184), as well as other applicable domestic legislation and international treaties, depending on the circumstances of the particular case.

Authors: Rodrigo d’Avila Mariano e Daniela Favaretto 

Chiarottino e Nicoletti Advogados

Av. Juscelino Kubitschek, 1700 • 5º e 11º andares
Edifício Plaza JK • Vila Olímpia
04543-000 • São Paulo • SP • Brasil
Tel +55 11 2163-8989
www.chiarottino.com.br