4.5.1. Copyright Law (Copyright and related rights)
Initially, we must clarify the suitable nomenclature for the institution being analyzed, which, in relation to the differences established by the most respected doctrine, the expressions “Copyright Law” and “copyright” are actually many times used as synonyms without major classification distinction. However, according to our specific legislation on the matter, i.e., Law n. 9,610, dated 02.19.1998 (Brazilian Copyright Law), we will adopt in this work the expression “Copyright Law” or “copyright”, as the gender of which the “royalty” and “related rights” are samples (according to Article 1 of the referred law).
The institution of Copyright Law, beside the industrial law, is inserted under Intellectual Property, which deals with the so-called “intellectual rights”. These are rights that fall on human creations, manifested in sensitive, aesthetic or utility forms, being therefore assigned aesthetic or practical purpose.
Thus, the Intellectual Property is the branch of the law that splits up in the study and regulation of the Copyright Law and industrial law or industrial property rights, originating two different legal systems of special protection.
4.5.2. Concept and Legal Nature
Many are the doctrinaire definitions of Copyright Law, and we hereby transcribe the teaching of some scholars studying the matter.
In synthesis, Carlos Alberto Bittar1 understands that:
“(…) the Copyright or Copyright Law is the branch of the Private Law ruling the legal relations originated from the creation and economic use of aesthetic intellectual works comprised in the literature, arts and sciences”.
For Antônio Chaves2, the Copyright Law would be:
“(…) the set of privileges recognized by the law to all intellectual creators on their literary, artistic or scientific productions with some originality: or extra monetary nature, in principle, without time limitation; and of patrimonial order, to the author, during all his life, with the accrual, for the successors appointed by the law, of the term defined thereby.
We identify therein two types of assignments: on one side, those pertaining to the socalled moral right, which consists of the right to the recognition of the paternity of the works, the right of the unpublished, the right to the integrity of its creation, the right to modify the work, finish it, oppose that other person should finish it etc.; on the other side, those of patrimonial nature, which lie in the exclusive privilege of receiving from its production all benefits it may give cause to, especially through the publication, reproduction, play, performance, translation, acting, adjustment, arrangements, dramatization, adaptation for movies, radio broadcasting, television, etc.”
Please note that the concept established by Antonio Chaves is vested on great complexity, of which we can already extract considerations on the hybrid nature of such law.
In its origin, it was understood that the Copyright Law have intimate connection with the Civil Law, being inserted in this branch of the law. Currently, there prevails the understanding regarding its scientific independence, being deemed a true expertise.
After overcoming the doctrinaire discussions regarding the classification of the Copyright Law as property or personality, the understanding was adopted that it is a sui generis law, result of the interrelation of moral and patrimonial law. It is not merely property right, nor is it a personality right, vested of personal and monetary characteristics and constituting thus a new type of private law.
The hybrid nature of the Copyright Law results from several factors and peculiar structural elements, such as the special nature of the intellectual work and of the regulation itself, which rules its protection, as it is determined by such special nature. For this reason, it requires to be considered an independent law, to be ruled by specific legislation.
At the same time in which the intellectual work constitutes a product of the spirit and personality of its creator, such creator establishing an inseparable relation, it is also considered an economic assets and, as such, liable to exploitation. Thus, the Copyright Law has moral and patrimonial characteristics, being divided in these two areas of the law which, due to their nature and purpose are, however, intimately connected, constituting an inseparable set.
The Copyright is thus a special type of right, destined to the defense of the personal and patrimonial connections of the author with the work, deserving dedicated legal grounds, separate from the codes, as it happens with several current legal systems. Actually, the scientific independence of this law is justified by its specificity, due to its peculiar characteristics that make it different from the other private law issues, easily identifiable by the doctrine, precedents and legislation, at national and international level.
220.127.116.11. Faces of the Copyright Law
As seen, the Copyright Law is vested on moral and patrimonial components related to the connections of the author with his work, identified as moral and patrimonial rights.
These two faces of the Copyright Law, each with its own characteristics and features, are connected and supplement each other to protect the author regarding the creation, materialization and use of the work, thus constituting the one and inseparable content of such law.
18.104.22.168.1. Moral Rights of the Author
The moral rights of the author are destined to the protection of the personality of the creator, in recognition of his efforts and of the creative result itself, true manifest of its personality. In this sense, it is convenient to observe that the moral character of the copyright is inherent thereto due to the fact that the author’s work itself is an economically worthy asset. Such rights are therefore permanent liens of the creator with his work to defend its personality.
They arise from the very creation of the intellectual work and last throughout the existence thereof, producing its effects, due to the essential feature of maintaining the connection between the work and its creator. We therefore emphasize that there are moral rights that are transmitted to the successors of the author.
Some of the moral rights arise from the mere materialization of the work (such as the right to the unpublished, the right to paternity, the right to nomination), whilst other emerge only from the communication of the work to the public (right to integrity, right to change and right to claiming the work).
As essential characteristics of such rights, we can emphasize the following: personal nature (strictly personal nature), inalienability and unavailability, perpetuity (they survive the death of the author and, including, the expiry of the property rights of the author, when the work becomes of public domain), lack of statutes of limitation (may give cause to jurisdictional protection anytime), absence of pledge (they do not give room to judicial constriction) and absence of waiver, being any contractual clause aiming at negotiating such rights completely null and void.
They are also transmitted by succession, except for those connected to the person of the creator himself, which, according to the Brazilian Copyright Law are the rights to change and to remove the work from circulation.
In fact, any agreement involving moral rights of the author will be deprived from effectiveness due to offense of the public order rules that regulate them.
Article 24 of the Brazilian Copyright Law lists the moral copyright, among which we enhance the following: right to the paternity of the work (right to connect the author’s name to his creation), right of unpublished (right of not disclosing or communicating the work), right to nomination (right to give the name, step name or any other signal identifying the author to the work), right to the integrity of the work (right of preventing the modification or the practice of any act which may hurt the author in his honor or reputation), right to change, right to remove the work from circulation (or right to retraction) or the right to suspend any kind of use already authorized, the two latter provided the use or circulation implies offense to his reputation or honor, except for indemnities to third parties, when applicable. Such conditions involve both subjective and objective aspects and there is up to now no consolidated precedents on the matter.
22.214.171.124.2. Property rights of the Author
The property rights of the author consolidate the defense of the interests of the author over the economic use of the intellectual work, through all means possible. They also arise with the creation of the work, manifesting with the communication thereof to the public.
Such rights originate from the monopoly of use granted to the author aiming at the economic exploitation of the works, being such exclusivity temporary, relative and limited.
Therefore, the property rights of the author constitute the right to use and enjoy the works, in whole or partially, exclusively of the author who may use them, at any title, transmitting them to third parties, in whole or part, between live people or by succession. These are thus rights of exclusive nature, in as much as the author is the sole party to be able to enforce such privileges. From such exclusive right there arises the necessity of prior and express authorization from the author for third parties to make any economic use of the intellectual work protected.
Under the terms of Article 3 of Brazilian Copyright Law, the property rights of the author are considered chattel, exactly to make its disposal possible. Otherwise, the moral rights of author are rights of material nature, disposable, temporary, can be pledge (with the legal exceptions – Article 76 of Brazilian Copyright Law) and subject to statutes of limitation.
Thus, the property rights of author may be temporarily or permanently negotiated. Through the negotiation of such rights, that is, of its use authorized by third parties, the author may enjoy the economic benefits of his intellectual creation, constituting one of the essential objects of the Copyright Law.
In this sense, we must observe that the property rights are independent among them and, consequently, so are the different types of use of the intellectual works. This principle, expressed under Article 31 of the Brazilian Copyright Law, is extremely important, since the result thereof is that the negotiation of a property privilege does not imply the necessary negotiation of other. The logic application of this principle is subsumed in the issue concerning restrictive interpretation of the juristic acts involving Copyright Law (Article 4 of the same law), so that the author holds the property rights not expressly transferred to other or those kinds of use of the work not provided or not existing at the time of the negotiation.
As examples of property rights of the author we enhance the reproduction rights (originated from the indirect communication of the work to the public, through, for instance, of: print, engraving, photograph, mechanical, cinematographic or magnetic recording, reproduction by communications satellites), the right of representation, among others.
4.5.3. International Law
The intellectual property has a cosmopolitan, universal character, exceptional nature and immaterial essence, which cannot be located by the customary means and criteria. Once it has such international character, it is object of differentiated treatment based on the Berne Convention, with which we will deal later.
The Copyright Law has always claimed for international recognition, so as to implement the intended protection. With the evolution of the communications means in the modern age, the necessity of international protection is even more serious, and the difficulties of revealing the judicial nature of the Copyright Law is reflected in the internal legislations and international conventions. With the appearance of the Codes, this problem was aggravated, since people did not know where to deal with such rights.
We emphasize that from the inception two different judicial systems ruling copyright have challenged each other: the Anglo-Saxon system, which calls the rights pertaining to author copyright, and the European system, which refers to the droit d’auteur or diritto d’autore.
The copyright, whose origin is connected with the origin of the press, preceded the rights pertaining to author, corresponding only to the economic exploitation of the work. The droit d´auteur, on its side, appeared a few centuries later, inspired by the principles of the French Revolution, being then propagated throughout Europe and later through the Latin American countries, such as Brazil.
Therefore, the copyright system, in force in the Anglo-Saxon countries, protects the property components of the Copyright Law, whilst the European system, of French origin, is in force in the countries of Roman tradition, exceeding the privileges of moral order and the strictly personal character of the Copyright Law.
However, the effort of the authors to legislate in the internal order was not satisfactory. The lack of protection, in some countries, and the difference among the existing systems made it difficult to achieve an effective protection. Thus, it was seeking international protection, comprised of material rules and of procedural character. In fact, the Copyright Law was object of great mobilization in the international area.
In such context, the efforts of the international community, which aimed to protect both the moral aspects, and the property aspects of the intellectual work, resulted in the appearance of the first great international agreement on copyright, the Berne Convention, dated 1886, whose principles continue to be updated and effective. After several reviews, it continues to be the instrument grounding the International Copyright Law, as it has guided the subsequent international conventions on the matter.
Jointly, the Berne Convention and the Paris Convention (1883), which rules the industrial property, reflect the dichotomy model which called for the division of Intellectual Property into two parts. Such dichotomy was incorporated to the Brazilian Civil code of 1916, which separated the industrial property and the Copyright Law. However, such historical view was overcome in 1967 with the creation of WIPO (World Intellectual Property Organization), which originated the modern model, according to which the Intellectual Property is a joint set of complex rights. Just like the Paris Convention, the Berne Convention is currently managed by WIPO.
We also emphasize the Geneva Universal Convention of 1952, whose wording was leaded by the United States of America, and to which most of the countries signatory of the Berne Convention, such as Brazil, have adhered. Its administration is done by UNESCO and the latest review was in 1971.
Other international conventions ruling Copyright Law have succeeded, such as: The Rome Convention for the protection of performing artists or performers, producers of phonograms and radio broadcasting organizations of 1961, managed by UNESCO, by WIPO and ILO; the Convention to protect producers of phonograms against unauthorized reproduction of their phonograms, signed in 1972 in Geneva and managed by WIPO; the Convention to protect signals transmitted by communications satellites, signed in Brussels in 1974; and the Convention that instituted WIPO, of 1967.
Finally, we must point that, with the inclusion of Intellectual Property issues in the Uruguayan Round of the GATT (General Agreement on Tariffs and Trade), important discussion court of issues on international trade which resulted in the creation of the World Trade Organization (WTO), there appeared the TRIPS – Trade-Related Aspects of Intellectual Property Rights.
TRIPS, attached to the Agreement Constituting the WTO, was enacted in Brazil through Decree under number 1,355, dated 1994, contributing to the great advance in the international and internal legal handling of Intellectual Property as a whole.
Specifically in respect of Copyright Law, the great innovation brought by TRIPS refers to the protection of computer software, recognizing them internationally as literary works, under the terms of the Berne Convention.
4.5.4. The Brazilian Positive Law
The Federal Constitution of 1988, currently in force, consolidated the treatment of the matter, raising the copyright to the level of essential rights, and providing thereon in its Article 5, subsections XXVII and XXVIII. Currently, the subject is ruled by Law n. 9,610/98 (Brazilian Copyright Law).
Brazilian Copyright Law introduced a series of victories to the treatment of the issue, in spite of the relevance of certain criticism to its text. Actually, reflecting the concern to preserve the guidelines followed as of the Berne Convention, such law maintained the pioneering institutions of the previous law and the constitutional principles introduced by the Constitution of 1988, so that, in spite of certain exclusions, its innovative character is basically due to the systematization and updating of the previous law. It is convenient to point, in this sense, that the double nature of the copyright has been maintained, as a consequence of the set constituted by its property and moral components.
It is also convenient to point out that the following diplomas on copyright are also in force in the country: the referred Berne and Geneva Conventions, enacted respectively through Decrees ns. 75,699, of 1975 and 76,905, also of 1975, TRIPS, through the referred Decree under n. 1,355, of 1994, which enacted the same, articles 184 to 186 of the Criminal Code, with the new wording given by Law under n. 10,695 of 2003, articles 524 to 530 of the Criminal Procedure Code, among other internal diplomas and international treaties to which Brazil has adhered.
126.96.36.199. Law n. 9,610/98
We must consider some of the important issues and principles covered by the new law.
We must emphasize, as seen, that Brazilian Copyright Law rules the copyright and its related rights, as provided under its Article 1.
188.8.131.52.1. Treatment to the Foreigner
Article 2 of Brazilian Copyright Law establishes, in its caput, that the foreigners domiciled abroad will be assured protection of their copyright under the terms of the agreements, conventions and treaties in force in Brazil. In its sole paragraph, it determines that the application of the referred law to the locals or people domiciled in country assuring the Brazilians or people domiciled in Brazil the reciprocate protection of the copyright or equivalents.
184.108.40.206.2. Important Definitions
The Law establishes, in its Article 5, some definitions which may guide the interpretation of its application, which, however, are object of criticism by some scholars. In this sense, it is convenient to observe that it missed defining the important concept of plagiarism, such a current practice, whose prevention and repression are over and above the whole authorial legislation.
220.127.116.11.3. Authorship and Title
The protection of the intellectual work by the Copyright Law appears with its creation, understood as the insertion in the external work through its original form. In principle, therefore, the author is the creator of the work itself, individual of whose intellectual effort it results.
However, in the protection of copyright, the expression author may rise a series of doubts regarding its true meaning: would the intellectual creator of the work be the original owner thereto or the current owner?
There are situations in which such concepts fit in, which we clarify in general lines.
The principle established by Brazilian Copyright Law, in its Article 11, caput, is that the author is the individual who creates the literary, artistic or scientific work, i.e., the one giving raise to a spiritual work. This is thus the general rule on the authorship of the intellectual works protected by the Brazilian Copyright Law.
In this sense, the authorship does not depend on any condition such as age or mental condition, and the person under legal age may be the intellectual creator as well as the Indian, the prodigal and the mentally ill, even though the exercise of the copyright is always subject to the rules of the Civil Law.
Regarding the foreign author, his protection is ruled by Article 2 of the law, according to item 18.104.22.168.1. above.
In the sole paragraph, the referred Article 11 establishes an exception when defines the possibility of legal entities becoming subject of copyright in the cases provided by the same law.
This way, legal entities may exceptionally bear title of copyright, whether for origin, through the creation, whether for derivative ways, in the case where there is a transfer of rights, as clarified below.
Actually, our legal order has no impediment for the legal entity to bear title of rights and obligations, and such understanding may extend to the copyright, provided the limitations are observed, regarding the physical phenomena of the creation, which will always be incumbent on the performing individuals. Besides, this is the guideline adopted by the legislations of several countries.
The collective work is a typical example of original title which may be attributed to a legal entity. The referred Article 5 of the law defines, in its subsection VIII, letter h, as “that created upon initiative, organization and responsibility of an individual or legal entity, which publishes it in its name or brand and that is constituted by the participation of different authors, whose contributions merge in an independent creation”.
The property rights of author over the collective work are incumbent on its organizer, individual or legal entity, being assured protection to the individual participation, including the corresponding compensation under the terms of Article 17 of the law.
Under the Title dealing with the use of intellectual works and phonograms, Brazilian Copyright Law has a specific chapter on the use of the collective work, providing on the same in its Article 88.
It is also necessary to clarify that the title to the copyright may be of origin or derivative. The author of the works, understood as the creating individual, is also the original owner, as well as the legal entity in the case of creation of collective work. It is thus observed that not always the title of origin coincides with the authorship.
However, the title of the authorial work may be transferred to third parties, whether by the willful act of its author or original holder, whether as a consequence of his death. Thus, the derivative holder is the party which acquires, by means of convention (editing agreements, license, assignment or concession, for instance) or succession (according to the civil law ruling the matter), the copyright over the intellectual work, in whole or part, in spite of not having participated of its creation.
It shall be noted that such transmission of rights is limited to the property rights of authorship, with the sole exception of the moral rights of author which are transmitted by succession.
It is important to clarify that the derivative title does not relate to the so-called derivative works, whose author is deemed the original holder of copyright, as clarified by item IV.1.6.1 below.
In Brazil, the protection of copyright is inherent to the creation, appearing with the manifestation of the idea under a given form. Therefore, it does not depend on any registration, this is provided by Article 18 of Law n. 9,610/1998. Hence, the registration of the intellectual work is optional, and can be done before the competent public offices under the terms of Article 19 of the same law.
Even though the registration of the work is merely declaratory and not a constitution item of the law, we recommend it be done whenever possible, since it will act as evidence means, or, at least, as strong indication of authorship or title.
22.214.171.124.5. Protection Term
It is repeated, in first place, that the moral rights of the author are permanent and some of them are transmitted to the successors (Article 24, paragraph 1 of Brazilian Copyright Law).
As a rule, the property rights of the author, including on posthumous works3, will have duration of seventy years counted as of January 1st of the year subsequent to that of the author’s death, observing the succession order established by the Civil Code (Article 41 of such law).
In case of works done through co-authorship, therefore work of indivisible nature, such seventy years term will be counted as of the death of the last surviving co-authors, accrued to the rights of the survivors those of the co-author who dies without successors (Article 42 of the above law).
Regarding the anonym works or published with pseudonyms4, the same term of seventy years as of January 1st of the year subsequent to that of its first publication will be counted (Article 43 of the referred law).
There is also a specific provision for the initial term of the protection term of the property rights on the audiovisual and photographic works, which will be of seventy years counted as of January 1st of the subsequent year to that of the first disclosure (Article 44 of the same law).
This way, after expiry of the protection term of the property rights of the author, under the legal terms, the intellectual works will be of public domain, and then they may be freely used by third parties, for economic purposes.
Additionally, we must point out that the works of deceased authors who have left no successors, as well as those of unknown authors, except for the legal protection to the ethnical and traditional knowledge, will be of public domain, as determined by Article 45 of Brazilian Copyright Law.
126.96.36.199.6. Intellectual works
The Copyright Law aims, basically, to protect the intellectual works of aesthetic nature. In this context, the Copyright Law rules the legal relations between the creator and its work, both as a consequence of the creation itself and of the circulation of the work, in face of all who in any way interact therewith, such as the State, the people as a whole, the user and the party undergoing economic exploitation. Actually, there is an inseparable lien between the work and its creator, being the Copyright the result of such lien.
The terminology used is also large, so that several expressions are held synonyms to name such work of aesthetic nature: intellectual work, inventive work, creation etc.
Article 7 of Brazilian Copyright Law contains definition on the works protected by Copyright Law, as transcribed below:
“Article 7 – The creations of the spirit, expressed by any means or affixed in any support, tangible or intangible, known or to be invented in the future are protected intellectual works, such as: (…)”. (bolded emphasis added)
From this definition one can extract the basic principle that the Copyright Law does not protect the idea, but only the manifested form of a creation, consequence of the emanation of the human spirit, whose affixation can be done in material or non-material support.
One can then conclude, therefore, that the intellectual work, always of aesthetic purpose, is determined by two conditions: (i) the form of expression, resulting from manifestation of creative content in some support, and (ii) the originality of such form of expression.
Regarding the issue originality, it is important to clarify that, even though there is no mention in the Copyright Law in such respect, there is a consolidated doctrinaire understanding in respect of its related character. This because, regarding copyright, the absolute novelty is not required, but only that the work has some originality, that is, individualized creative elements able of differentiating it from other previously existing work.
It should be emphasized that the authorial protection always requires that the intellectual work be within the protection time granted by the law.
It must also be emphasized that the protection of the intellectual works does not depend on any subjective analysis as to its value or merits. Therefore, a work is subject to authorial protection provided it is an original aesthetic creation, manifested in some manner, even that, strictly, it does not classify as literary, artistic or scientific work, such as recognized including under the TRIPS Agreement.
Considering the requirements for characterization of the works protected by Copyright Law, it is convenient to state that there are creations which are outside the range of authorial protection, in first place it is distinguished the works of merely utility nature, subject to the protection of the industrial property law.
Article 8 of the law lists the unprotected creations, quoting, for instance, the ideas, regulatory procedures, the texts of treaties or conventions, laws, decrees, rules and legal decisions.
We must also point that the works can be original or derivative, depending on their independence in relation to another preexisting one. The original or primary works are created independently of any other, while the so-called derivative works depend on another, from which they originate through intellectual creation procedures, such as conversion, supplementation or reduction. Typical examples of derivative works are: the translation and the adaptation (Article 5, Subsection VIII, letter g of such law).
As they appear from foreign creation, originated from the use of preexisting intellectual works, they require the prior and express authorization of the author/owner of the original work who gives the essence thereof (Article 29 of the law), except if the latter is of public domain. Anyhow, once the necessary requirements are meeting, they are deemed new and original works inserted in the range of the authorial protection.
188.8.131.52.6.2. Exemplifying list
Brazilian Copyright Law establishes in its Article 7 a merely explanatory list of the intellectual works under protection, both original and derivative. In fact, such list could not be decisive, given the wide extent of the Copyright Law, which may encompass an infinite number of aesthetical creations vested with a minimum of originality.
Along with the general rules, the referred law assigned specific treatment to certain types of protected works, enhancing below considerations in respect of some of them.
Fine Arts Works:
The protection of fine arts works is associated to the public interest, given their unquestionable cultural and historical value.
Article 77 of the law covers the use of fine arts works, providing as general rule that the disposal of the object into which it materializes only transmits to the purchaser the right of exhibiting it, while the reproduction rights remain as the property of the author.
Under Article 78, the law establishes the assumption of cost of the authorization for reproduction of the fine arts work by the author, which shall always be done in writing.
Therefore, the property copyright on the fine arts work belongs to its author or holder. In case of disposal and in the absence of express otherwise provision stating otherwise, the owner/purchaser of the object into which the work materializes will only have the right of displaying the work, but not that of reproducing it. Any other form of use of the work will be subject to prior authorization of the author/owner, since the types of use of the intellectual works do not depend on each other.
Furthermore, the legal provisions above are perfectly conform to the general rule of Article 37 of the law, which determines that, except if otherwise agreed and under the cases provided thereby, the acquisition of original or counterpart of a work (of whatever nature) does not convey the purchaser any of the property rights of the author.
The photographic work classifies as artistic work, being object of copyright protection, irrespectively of the fact it results of the joint use of arts and technique.
Article 79 rules the use of this type of work in a brief manner:
“Article 79 – The author of photographic work has the right to reproduce it and offer it for sale, provided the restrictions regarding display, reproduction and sale of portraits are complied with, and without prejudice of the copyright over the photographed work, if it is a protected fine art.
§1 – The photograph, when used by third parties, will legibly identify the name of its author.
§2 – The reproduction of photographic work is prohibited when it is not in absolute consonance with the original, except upon prior authorization of the author”.
The paragraphs of such legal provision refer to the moral rights of the photographer: right to nomination and right to integrity of the work, and only the photographer may modify it or authorize its modification by third parties.
Regarding such special protection system, we must quote the valuable lessons of the late jurist Carlos Alberto Bittar5:
“Additionally, the corresponding use is subject to special rules, exactly because, when the object is the human person, the rights of the person pictured must be observed, and, on the other hand, the disclosure of use of reproductions through photographs also affects several areas of the art (such as painting, sculpture, architecture).
In this sense, regarding the photographic work, the author usually is entitled to reproduce it and place it for sale, but, in the portraits, the restriction regarding display, reproduction and sale, in face of the rights of the person focused, shall be complied with. Likewise, being the photograph a figurative arts work, the exercise of the rights of the photographer shall be done without prejudice of the copyright on the work reproduced (Article 79), depending on the conciliation of prior adjustment among the interested parties, always respecting the moral aspects of the primary creation”.
In respect of the compensation for the use of the photographs, it must be object of agreement among the parties, being the execution of agreements in that area very common, especially in case of photographs used for publicity.
Architecture and Engineering Works:
Under Subsection X of Article 7 of Brazilian Copyright Law expressly inserts as protected works “the designs, sketches and fine arts works related to geography, engineering, topography, architecture, landscaping, scenography and sciences”.
We must clarify that the designs at issue shall not be confused with the mere design mentioned under Subsection I of Article 8 of such law, which is indeed excluded from copyright protection.
Concerning the architectonic work, we must emphasize that there is a discussion on its aesthetic or utilitarian nature, and that we deem more adequate to consider its double functional aspect.
Exactly as a consequence of such double nature, we understand that the building itself is not object of copyright. Thus, the architect, in principle, cannot oppose to a possible modification of his design upon the building of the work, but he is allowed, however, to refute the paternity of the amended work during or after the end of the construction. In this sense it is ponder in Article 26 of the current law, thus consecrating the mitigated moral right of the author-architect.
It is also observed that, along with the rules established by the Copyright Law, the architectonic works are object of dedicated regulations.
The engineering designs are also protected by the Copyright Law and, as seen for the architectonic designs, they may be registered at specific office (CONFEA – Conselho Federal de Engenharia e Arquitetura – Federal Council of Engineering and Architecture).
The copyright protection of the computer software was consolidated by Brazilian Copyright Law, in its Article 7, Subsection XII. However, in paragraph 1 of the same provision, it was established that such software is object of specific legislation, and the provisions of the referred general law applicable thereto shall be complied with.
Thus, Law under n. 9,609 was issued in Brazil, also dated February 19, 1998, to deal with the specific protection of the computer software, considered in its Article 2, caput, as literary work protected by the copyright legislation and related laws in force in Brazil, provided its provisions are always complied with. This way, and taking into consideration the existence of specific law to rule the computer software, the application of Brazilian Copyright Law is only subsidiary.
Database is protected under Copyright Law which includes database as a work of authorship together with the compilations, anthologies, encyclopedias and dictionaries. Such protection is outlined under Article 87, which provides that the owner of the database will bear the exclusive right on the expression means of the structure of such base. Additionally, paragraph 2 of Article 7, XIII, determines that such protection does not encompass the material data themselves and is considered free of prejudice of any existing copyright on the data or material included in the works.
Hence, it is important to emphasize that the protection to one database does not encompass the software used to create it, nor on the operation of the base, nor on its contents or on the works (individually protected) which may eventually be part thereof. The protection is given to the structural form, to the architecture of the base, to the form in which it was organized.
We must observe that not all databases deserve copyright protection. It is necessary for them to contain creativity and originality, that is, they are not protected as long as they are mere lists of information, but only when such elements are organized, organized and systemized in a creative and distinctive manner.
Thus, the database with merely informative content, which does not deserve copyright protection, may seek the rules establishing the agreements and secrets of the business, for instance, but not the copyright protection.
Anyhow, even the copyright protection is not sufficient to assure the security required by the market nowadays, to hinder unlawful competition, to avoid third parties to use other people’s investments to set up a given database.
This way, now it is frequently discussed in Brazil the convenience of a sui generis protection for the databases, including exactly what the copyright protection cannot encompass: the contents of the database, aiming at safeguarding the investment made by the owner of the base.
4.5.5. Related Rights
The so-called rights related to copyright are those whose title is granted to artists, interpreters and performers of works and to producers of phonograms, videograms and radio broadcasting organizations. Such right is attributed to these subjects as a consequence of their role of assistants for production, creation or broadcast of intellectual works protected by the copyright.
The related rights, as provided under articles 89 et seq. of Brazilian Copyright Law, also comprise two paths: the moral and property, and their holders have the right to prevent the use of its interpretations/performances etc., for which they have not granted express authorization.
The duration of the related property rights is seventy years (Article 96 of Brazilian Copyright Law) counted as of January 1st of the year subsequent to the affixation (phonograms), transmission (broadcast of radio broadcasting companies), and public performance and representation for the other cases.
In order to exercise their related rights, the law allows their holders their association, with no profit intent, aiming at the collective management of such rights.
It is relevant to note, in respect of the related rights, that it is not necessary that the interpretation be affixed in a material support so as to exist a related right, since the mere unauthorized transmission of the interpretation implies its infringement.
4.5.6. Copyright Agreements
Brazilian Copyright Law establishes, as general rule, for the interpretation of the juristic acts on the matter:
“Article 4 – The juristic acts on the copyright are restrictively interpreted”.
Brazilian Copyright Law provides that the moral copyrights (listed under Article 24) are not liable of negotiation by the author (Article 27) and, among them, we enhance the right to nomination (Article 24, II), that is, the right of being announced as author of the work in any use thereof; and the right to oppose to changes which may damage the work or affect him, as author, in his reputation or honor (Article 24, IV). These two types of moral rights, albeit not negotiable, shall be transmitted causa mortis to the successors of the author, as established under Article 24, paragraph 1º of Brazilian Copyright Law.
Also regarding the capacity of transmission of the copyright, Article 49, I, of the same legal diploma already quoted, establishes that “the total transmission encompasses all copyright, except for those of moral nature and those expressly excluded by the law”.
The property copyright, such as provided under Article 28 et seq. of the current Law, are the negotiable content of the copyright, corresponding to the exclusive right of the author of using, enjoying and disposing of his work:
“Article 28 – The Author bears the exclusive right of using, enjoying and disposing of the literary, artistic and scientific work”.
The contractual transmission of the copyright occurs according to the provisions from Articles 49 to 52 of Brazilian Copyright Law, after meeting the following legal requirements:
a) regarding the form – that the total and final transmission of the copyright shall only be acceptable through written agreement;
b) regarding the term – the maximum duration of any kind of contractual transmission will be of 5 years in case of absence of written contractual provision; in case of assignment of future works the assignment will cover, at most five years as well, being also reduced to five years the duration of the assignment, whenever it is recorded as undefined or superior, reducing, in the due proportion, the price determined.
c) regarding the territory – except if otherwise expressly provided, the assignment will only be valid in the country where the agreement was signed; and
d) regarding cost – the total or partial assignment of the copyright is assumed to be at cost.
Also in respect of Articles 49 to 52, it is relevant to observe that the contract of copyright assignment may be registered on the margin of the corresponding registrations, depending on the nature of the works, and its essential elements will be mentioned in the instrument of assignment as the object and conditions for the exercise of the rights, regarding time, place and price.
It is noted that the copyright may be transmitted in a contractual or non-contractual form. The noncontractual form of transmission is the succession, which covers both the property rights and some of the moral rights, as already seen previously.
Regarding the types of contractual transmission, it must be mentioned that the tonic of Brazilian Copyright Law regarding juristic acts related to copyright is the protection of the author and, therefore, no transmission of rights is assumed or implied, and the agreements shall be always carefully worded, so as that any work can be used or reproduced. The most common types of contractual transmission of copyright are:
a) total assignment – the assignment and transfer agreements consist of the disposal of all property copyright. However, it is noted that the cases of use shall be (in this type and all other, we must say) all expressed in the written agreement, as a consequence of the restrictive interpretation of the legal copyright agreements imposed by Brazilian Copyright Law in Brazil.
b) partial assignment – This type implies the passage of one or several possibilities of enjoying the thing of the legal area from its owner to another. The main right is therefore burdened, loosing one of the possibilities of enjoyment.
c) license – the license agreement consists of the limited concession of use or reproduction, similar to the lease of material assets, which may or not be exclusive, according to the rules of Articles from 49 to 52 of Brazilian Copyright Law. The License is thus a form of assignment of a possibility of enjoying the thing without it being transmitted or the property right of the author burdened. It thus creates a new active legal situation favorable to the holder of the license, with the corresponding obligations undertaken by the holder of the property right of the author, without it being modified due to effect of the Agreement.
There are also rules for typical agreements or agreements related to specific kinds of works, such as the agreement for the edition of intellectual works (Articles 53 to 67), or agreements related to theatre, music works and phonograms (Articles 68 to 76), fine arts works (Articles 77 and 78), photographic works (Article 79) and audiovisual works (Article 81).
From the typical agreements specified by Brazilian Copyright Law, it is relevant to enhance the Edition Agreement as example, since it was the contractual type deserving major attention of the current legal diploma, being regulated by Articles 53 to 67 of the Brazilian Copyright Law.
Such agreement widely refers to all and any kind of reproduction. Strictly speaking, it will refer only to the kind of edition referring to graphic work. The system of Brazilian Copyright Law seems to set up a general system, a treatment of the edition in a wide sense, it being reasonable to consider that the edition system may be, in practice, a basic agreement for the other kinds that provide for the reproduction of works.
4.5.7. Custom-made work
Brazilian Copyright Law does not bring up any rule regarding the custom made works under protection. In the previous law, it was assumed, in the absence of an agreement, that the property copyright of the custom made work was divided into equal parts (i.e. condominium) between the author and the contractor (the party posing the order).
The absence of any rule on this hypothesis leads us to conclude that, should there be no agreement ruling the title to the property copyright, the totality of such rights belongs exclusively to the author, and the compensation paid by the contractor will be deemed only a counterpart for the author’s services, but not for the transfer or license of use of the copyright on the work. In such case, all the contractor may do is a limited use of the work, under the terms of Article 49, VI of Brazilian Copyright Law:
“Article 49 – The copyright may be fully or partially transferred to third parties, by himself or his successors, at universal or single title, personally or by means of representatives with special powers, by means of license, concession, assignment or by other means accepted by the Law, provided the following limitations are respected:
VI – there being no specifications regarding the type of use, the agreement will be construed restrictively, deeming as limited only to one which is that mandatory to meet the contractual object”. (bolded emphasis added)
Thus, we notice the importance for the contractor to ascertain that any work to be created made to order be supported by specific agreement providing for the transfer of copyright. For each employee, trainee or service provider it is recommended to make a written agreement, executed by the parties and two witnesses, expressly providing for the transfer of the works already created (if any) and yet to be created. Taking into consideration the several restrictions existing in articles 49 and 50 of Brazilian Copyright Law, such agreement shall be subject to several precautions, as mentioned above.
4.5.8. Copyright Protection
The protection of copyright is granted through measures which are already part of the Common Law, which apply both to its property side and that of the personality, or specific provisions observed in Brazilian Copyright Law itself.
As well taught by Carlos Alberto Bittar6, with the concern of ameliorating the effectiveness of the jurisdictional provision regarding Copyright, the legislator provided for the civil protection thereof under Brazilian Copyright Law: “among the several types of copyright protection applicable to the Copyright Law, we have the prevention (such as the registration of the copyright), guarantee (such as the use of possession instruments), conservation (as, for instance, the possibility of seizure of the fake materials) and remedy of damages caused (by means of indemnity of material and moral damages, compulsory disclosure of the author’s name or the destruction of the seized fake material)”.
184.108.40.206. Civil and Criminal Areas
In the civil area, the copyright protection is granted by Articles 102 et seq. of Brazilian Copyright Law, which provide for civil penalties imposed on infringements of such rights, also establishing, in its Article 103, sole paragraph, the strict criteria of payment, by the infractor, of the price of three thousand units, for the cases in which it is not possible to determine the number of units constituting the fraudulent edition.
In the criminal area, Law n. 10,695 amended and added a paragraph to Article 184, giving a new wording to the Criminal Code.
On one side, such amendments constituted an advance in the treatment of infringements of copyright and related rights in Brazil, moreover in respect of the following amendments:
a) the adoption of the penalty of imprisonment from two to four years (paragraphs 1, 2 and 3), characterizing such crimes as of major offensive potentiality;
b) the inclusion of the infringement of related rights pertaining to artists and phonogram producers, which up to then used to characterize offense;
c) the typification of the offer to the public by means of cable, optical fiber (etc), work (paragraph 3), converting into crime what Law n. 9,610/98 already considered offense and reaching infringement acts performed with the support of new technologies, including the Internet.
d) the insertion of the notion of indirect profits and not only the intention of profiting, fact that ended up inducing the interpretation that only the direct profit would characterize the crime.
Such changes certainly meant a contribution to the piracy fighting, being tuned with Brazilian Copyright Law and with the international treaties on the matter, even though the effectiveness of such provisions depend clearly on the will of the authorities at the time of their imposition.
An aspect of such change that is also relevant was the understanding that the full copy of intellectual work does not constitute crime if it is done for the private use by the copier, with no direct or indirect profit intent (paragraph 4). Such practice constitutes, according to Brazilian Copyright Law, an offense, fact that shows the legislator advanced when dealing less strictly with the private use (with no direct or indirect profits) of intellectual works.
However, the issue is polemic and proves to be difficult to comprise, due to the quantity and complexity of public and private interests involved therein. The consideration and balance of such interests continue to be the main challenge of this subject.
(1) Bittar, Carlos Alberto, Direito de Autor (Copyright), 4th edition, reviewed, expanded and updated according to Law number 9,610 dated February 19, 1998, and according to the new Civil Code, by Eduardo C. B. Bittar, Rio de Janeiro, Forense Universitária, 2003, page 8.
(2) Chaves, Antonio, Criador da Obra Intelectual, Direito de Autor: natureza, importância e evolução [Creator of Intellectual Work, Copyright, nature, importance and evolution] Editora LTR, São Paulo, 1995, pages 28 and 29.
(3) This is the work published after the death of the Author, under the terms of Article 5, Subsection VIII,letter e, of Law n. 9,610/98.
(4) According to the definitions established by Article 5, Subsection VIIII, letters b and c, respectively, of the same Law n. 9,610/1998, anonym works are those which have no indication of the author’s name, due to his own will or even because it is unknown, whilst pseudonym works are those in which the author hides, being identified by a fictitious name.
(5) Bittar, Carlos Alberto, quoted work, page 75.
(6) Bittar, Carlos Alberto. “Direito de Autor” [Copyright], Forense Universitária.
Author: Gabriela Muniz Pinto
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