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 undeniable that Copyright is part of everyone’s daily life, although not all have a clear idea about that. In other words, when one takes a selfie, creates a video on their smartphone, or produces a text or a drawing for an Internet page, one produces a piece of intellectual work. In addition, one uses works and content protected by Copyright and related rights whenever one reads a book, watches a play or a movie, listens to a song, or uses a computer software.

Due to Copyright protection, an important premise is that not every content that is available, whether in physical support or in digital media, may be used indiscriminately, because Copyright protection is independent of the medium in which such content was created, or the support on which it was recorded.

In this sense, as in other countries, the use of a work of authorship in Brazil – save for few cases, as we will see below – requires the work owner’s authorization, under penalty of incurring a civil and/or criminal offense.

This chapter aims at presenting the entrepreneurs, who intend to invest in Brazil, with a brief overview on the regulation of Copyrights in the Country, bringing, for instance, what the law considers eligible for protection, what does not enjoy legal protection, and the consequences arising in case of Copyrights’ violation, without, however, exhausting the subject that is rather vast.

4.5.2. Copyright Overview

There are two Copyright protection systems: (i) the copyright of the countries where law has Anglo-Saxon origins, based on the utilitarian justification and on economic considerations; and (ii) the droit d’auteur originated from French law, adopted by Brazil, which unfolds into patrimonial right and moral right, as it will be discussed further on.

Copyright in Brazil is governed by the Federal Constitution (article 5, items XXVII and XXVIII), by Federal Law No. 9,609, of February 19, 1998 (the “Software Law“), which regulates the intellectual property of the computer program, by Federal Law no. 9,610, of February 19, 1998 (the “Copyright Law”), which regulates Copyright protection in general, in addition to other specific rules which may apply depending on the subject.

According to the Copyright Law, the creator of an intellectual work enjoys protection for his Moral and Patrimonial Rights, namely:

1. Patrimonial Rights: concern the author’s capacity to exploit the work from an economic perspective; that is, it ensures the holder the right to obtain a financial benefit in exchange for the use of his work by third parties. Patrimonial Rights are strictly linked to the use, fruition, and exploitation of the work, given that, in this context, the author has the prerogative to license such use on a permanent or temporary basis. In this sense, Patrimonial Copyrights are transferable provided that the limitations set forth in article 49 of the Copyright Law are complied with, including the existence of express contractual provision; and
2. Moral Rights: arise out of the creation of the spirit, being bound to the personality of the author. Thus, Moral Rights have a very personal, perpetual, inalienable, unavailable, and unseizable character. The author’s Moral Rights are listed under Article 24 of the Copyright Law, and include, among others, the right to claim authorship of the work at any time, and to have the author’s name appointed or announced as being that of the author, in the use of the work.

Differently from Moral Rights, Patrimonial Rights do not apply perpetually. Thus, once the period stipulated in the Law comes to an end, the work falls into public domain and its use becomes free, not requiring authorization or consideration for the use thereof. According to the legislation (article 41 of the Copyright Law) the author’s Patrimonial Rights survive for 70 years from the 1st of January of the year following the author’s death, with due respect to the civil law order of succession. In the case of the software (in which Moral Rights do not apply) the Software Law ensures (article 2, paragraph 2) protection for 50 years from January 1st of the year after that of the software’s publication or, in the absence thereof, of the year of creation of the program.

In this scenario, Copyright protects works, that is, creations of the spirit expressed by any means or recorded on any support, tangible or intangible. As an example, article 7 of the Copyright Law lists as protected works:

1. texts of literary, artistic, or scientific works;
2. lectures, allocutions, sermons, and other works of the same nature;
   dramatic and dramatic-musical works;
   choreographic and pantomimic works, the scenic execution of which is fixed in writing or in any other way;
3. musical compositions, whether or not they have lyrics;
4. audiovisual works, with or without sound, including cinematographic works;
5. photographic works and those produced by any process analogous to photography;
6. works of drawing, painting, engraving, sculpture, lithography, and kinetic art;
7. illustrations, geographic charts, and other works of the same nature;
8. projects, sketches, and plastic works concerning geography, engineering, topography, architecture, landscaping, scenography, and science;
9. adaptations, translations, and other transformations of original works, presented as new intellectual creations;
10. computer programs;
11. collections or compilations, anthologies, encyclopaedias, dictionaries, databases, and other works, which, due to their selection, organization, or arrangement of their content, constitute an intellectual creation.

On the other hand, article 8 of the Copyright Law lists what is not subject to Copyright protection:

1. ideas, normative procedures, systems, methods, projects, or mathematical concepts as such;
2. schemes, plans, or rules for conducting mental acts, games, or business;
3. blank forms to be filled in for any type of information, scientific or otherwise, and their instructions;
4. texts of treaties or conventions, laws, decrees, regulations, court decisions and other official acts;
5. commonly used information such as calendars, agendas, entries, or subtitles;
   single names and titles; and
6. the industrial or commercial use of the ideas contained in the works.

It is noteworthy that according to article 11 of the Copyright Law, the author will always be the individual who creates the literary, artistic, or scientific work, and protection granted to the author may apply to legal entities in the events provided in the Law.

As for the use of the protected work, this possibility is necessarily bound to the author’s prior and express authorization. Article 29 of the Copyright Law exemplifies the possible modalities of use of the work:

1. partial or complete reproduction;
2. editing;
3. adaptation, musical arrangement, and any other transformations;
4. translation into any language;
5. inclusion in phonogram or audiovisual production;
6. distribution, when not intrinsic to the contract entered by the author with third parties for the use or exploitation of the work;
7. distribution for offering works or productions by means of cable, fibre optics, satellite, waves or any other system that allows the user to select the work or production to perceive it at a time and place previously determined by the one who formulates the demand, and in cases in which access to works or productions is made through any system that involves payment by the user;
8. the direct or indirect use of the literary, artistic or scientific work, through: (a) representation, recitation or declamation; (b) musical performance; (c) use of loudspeakers or analogous systems; (d) sound or television broadcasting; (e) capture of broadcasting transmission in collective frequency locations; (f) ambient sound; (g) audiovisual, cinematographic or similar process exhibition; (h) use of artificial satellites; (i) use of optical systems, telephone wires or not, cables of any kind and similar means of communication that may be adopted; (j) exhibition of plastic and figurative works of art;
9. inclusion in a database, computer storage, microfilming and other forms of archiving of the kind;
10. any other modalities of use existing or that may be invented.

The Copyright protection regime in Brazil ensures that works are protected from the moment of their creation, regardless of registration. That notwithstanding, article 19 of the Copyright Law allows authors to register their works with the competent public agency, which, in the case of software, is the National Institute of Industrial Property – INPI and for other intellectual works, in general, the National Library. Registration, although not mandatory, is important, as it serves as proof of precedence, in case of disputes over the work’s authorship.

However, even Copyright bears exceptions. In this respect, article 46 of the Copyright Law lists the events that are not deemed Copyright infringement, namely:

1. reproduction: (a) in the daily or periodical press, of news or informative article, published in dailies or periodicals, with the mention of the author’s name, if signed, and the publication from which they were transcribed; (b) in dailies or periodicals, of speeches given at public meetings of any nature; (c) of portraits, or any other form of representation of the image, made to order, when carried out by the owner of the ordered object, with no opposition from the person represented therein or his heirs; (d) of literary, artistic or scientific works, for the exclusive use of the visually impaired, whenever the reproduction, with no commercial purposes, is carried out using the Braille system or any other procedure on any support for these recipients;
2. reproduction, in a single copy of small excerpts, for the private use of the copyist, as long as he does it, with no profit intent;
3. citation in books, newspapers, magazines, or any other means of communication, of excerpts from any work, for purposes of study, criticism, or controversy, to the extent justified for the purpose to be achieved, indicating the name of the author and the origin of the work;
4. collection of lessons in teaching establishments by those to whom they are addressed, their publication, in whole or in part, without prior and express authorization from the person who taught them being prohibited;
5. use of literary, artistic, or scientific works, phonograms and radio and television broadcasts in commercial establishments, exclusively for demonstration to customers, provided that these establishments commercialize the supports or equipment that allow their use;
6. theatrical representation and musical performance, when conducted in the family recess or, for exclusively didactic purposes, in educational establishments, with no profit intent in any case;
7. the use of literary, artistic, or scientific works to produce judicial or administrative evidence;
8. the reproduction, in any works, of small excerpts from pre-existing works, of any nature, or a complete work, in the case of visual arts, whenever the reproduction itself is not the main objective of the new work and that it does not harm the normal exploitation of the reproduced work or cause unjustified damage to the legitimate interests of the authors.

Likewise, article 47 of the Copyright Law provides that paraphrases and parodies, which are not true reproductions of the original work, nor discredit it, are free.

Note that article 4 of the Copyright Law provides that legal Copyright transactions shall be construed on a restrictive basis. Thus, even if the Copyright holder has authorized the reproduction of the work in a type of physical support, its reproduction in another type of support or even in digital version requires new express authorization. That is why it is always particularly important that contracts are as detailed and comprehensive as possible when it comes to defining the extent of the authorization for reproduction or use of a work.

4.5.3. Consequences in case of Copyright violation

Brazilian law ensures the owners of intellectual property rights the exclusive use of their creations, works and inventions. As mentioned, no third party may use those assets without prior express authorization. Otherwise, they may be subject to legal sanctions.

In summary, in case of Copyright violation, the holder of the right may seek compensation for damages, whether material and/or moral, based on the Copyright Law (article 101 et seq.), on the Civil Code (personal rights), on the Criminal Code (article 184), among other national legislations and international treaties which may apply according to the case at hand.

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