Doing Business in Brazil

4.5. Copyright of Works Created and Broadcast in Digital Environment

12/10/19

4.5.1.       INTRODUCTION

The Copyright can be present in everyone’s life whether they know it or not. When we make a selfie with a group of friends, tape a video on the smartphone or produce a text or drawing for a page on the Internet, we’re producing intellectual property. Further, we use works and content protected by copyright and connected rights while reading a book, watching a play, listening to music, using software or watching a movie or TV series.

With the technological progress, plus globalization, the society has gone through significant changes. The most diverse areas were affected by the digital era, such as the Copyright. Nowadays, people usually search for works broadcast in the digital environment, such as videos, audio shows, pictures, etc.

Then a doubt comes up: if the works broadcast in a digital environment would be subject to Copyright or if, since they are available for free public access, they would not enjoy any intellectual protection.

Copyright is still in force in the digital medium, with application of the same copyright legislation. The Copyright rules in Brazil also apply to the digital environment, even if they it do not set forth specifically creations made on the Internet. The copyright does not rely on the medium of creation.

An important premise is that not everything available on the Internet can be used indistinctly and without the permit of the author of certain work. That is why, even if a work is available for access in certain site, it cannot be necessarily be used freely.

However, it is not like that unless the copyright term has expired or the copyright (assets) has been waived, remaining further the moral rights, that are inalienable, non-renounceable, and non-transferable.

The own Copyright Act (“LDA” – Act no. 9.610/1998) sets forth some exceptions that allow the use works, either in the traditional environment or the Internet. Further, some conditions are preset for licensing works broadcast in the digital environment, called Creative Commons, in which the work author or holder can indicate what licenses he/she can give to whomever is accessing his/her work.

All and any intellectual work can be protected by Copyright. Then, if something is potentially protected by Copyright, its use by third parties must be authorized by its holder, on any account. Some situations are treated as exception, in which the Copyright holder is released from authorizing that his/her work is used. But these are specific and exceptional situations.

With the digital development, it has become easier to copy, replicate and sell the works of holders of Copyright. Such acts are often practiced without due author’s authorization. The use of content or works of third parties requires authorization, which can be via license agreement, and any use without such holder’s license is prohibited and can configure civil and criminal violation.

Technology opened doors for a wide range of possibilities in many areas, such as media, entertainment, communication, publicity and education. However, the easy access to materials available on the Internet raised large concern for violation since it has become a fertile soil for sharing content protected by copyright, leading to numberless violations and legal copyright conflicts.

The Internet has become one of the main threats to copyright for a long time and virtual content share has become a problem for lawmakers and copyright holders.

The growing Internet evolution has created “a chaotic environment for the legislation – both national and international –, particularly as regards intellectual property” (GANDELMAN, 2007, p. 188).

4.5.2.       COPYRIGHT OVERVIEW:

There are two kinds of protection: copyright, of the Anglo-saxon countries, and common law, linked to a useful justification and economic considerations, which acknowledges, with higher degree of value, the economic right of the intellectual property, and does not protect the author’s right,[1] and the Droit d´auteur, from the French law, of civil law, which is the system adopted by Brazil and split into equity right and moral right. The Brazilian Copyright is based on it. The protection falls essentially on the author/creator of the work[2].

Author’s right or Copyright? The specialized teachers understand that the term Copyright results from the junction of rights of the first creators (author’s rights), with the rights of those that interpret them, or disclose the finished work (connected rights). However, they are used indistinctly by Act 9.610/98[3].

According to definition given by ABRAMUS (Brazilian Association of Music and Arts), “the Copyright are norms established by the legislation to protect s the relationships between the creator and the utilization of of his/her creations, either artistic, literary or scientific creations, such as texts, books, paintings, songs, illustrations, photographs, etc.”[4].

In Brazil Copyright is ruled by the Federal Constitution (art. 5, items XXVII and XXVII) and the Copyright Act, hereinafter “LDA” (Act no. 9.610/98), and also by Act 9.609/98 (Software Act), which sets forth on computer software protection.

Specific laws/rules also apply to Copyright, such as the law that rules the adman’s profession and the rules of CAU (Board of Architecture and City Planning), on architects’ rights, for instance; the Act 6.533, of 05.24.1978 (it rules the professions of artists and technicians in entertainment shows); etc.

The National Library (responsible for enforcing the governmental policy of collection, custody, preservation and broadcast of intellectual production in Brazil) clarifies that Copyright is a right without borders. There are several international conventions on copyright, among which Berne Convention is the paradigm for the ruling legislation (Act 9.610/98).

All countries signing this convention are guided by the principle of reciprocity of treatment for those domiciled in the countries members of the Berne Junction. That is why foreigners living abroad will enjoy the protection ensured by the agreements, conventions and treaties in force in Brazil. Act 9.610/98 applies to the citizens or persons living in a country that ensures Brazilians, or persons living in Brazil, the reciprocity in the protection of copyright or equivalent.

We cite below some international non-restricting legislation:

·         Decree 75.699/73 (Berne Convention, created in 1886 in Switzerland), which rules the protection of literary and artistic works;

·         Decree 57.125/65 (Rome Convention), which sets forth connected rights;

·         Decree 1.355/94 (ADPIC or TRIPS – Agreement on Trade-Related Aspects of Intellectual Property Rights: an international treaty, part of the set of agreements signed in 1994 that ended the Uruguay Round and created the World Trade Organization), which sets forth aspects of trade-related aspects of intellectual property rights;

·         Act 12.853, of 08.14.2013, that sets forth the collective management of copyright;

·         World Copyright Treaty (1996) – it is a special agreement under the Berne Convention which deals with the protection in the digital environment. It ensures protection for any work in the digital world for a period of at least 50 years;

·         WIPO Treaty (World Intellectual Property Organization (1996) on phonogram performance – This treaty deals with two kinds of beneficiaries in the digital environment, firstly the performers (actors, singers, musicians, etc.), secondly, the producers of phonograms. It establishes the economic rights of distribution, rent, and communication with the audience and, for phonogram producers, the economic rights of reproduction, distribution rights, rental rights, and provision rights. The treaty ensures protection to artists and producers of phonograms for a period of at least 50 years.

·         WIPO Copyright Treaty (WCT):

·         WIPO Performances and Phonograms Treaty (WPPT):

·         Beijing Treaty on Audiovisual Performances.

Switzerland is signatory of all relevant international treaties, including Berne Convention, TRIPS, WIPO, WIPO Performances and Phonograms Treaty; the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961); the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (1971); and the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974).

The copyright is a field of intellectual property that comprises the technical field (Industrial Property (brands, patents, industrial drawings, repression to disloyal competition) and the aesthetic field (Artistic and Scientific Literary Property (Copyright).

The rights granted by any national legislation to copyright’s holder on certain protected work are generally “exclusive rights”, and the holder is entitled to authorize third parties to make use of the work, with exception of the rights and interests legally acknowledged to such third parties[5].

The copyright protects the works, that is, the externalization of thoughts, namely, the creations of mind expressed by any means or fixed in any support. Two criteria are required to deserve author’s protection: originality and creativity, whether the work has a lot of or little creativity.

Article 7 of LDA sets forth that the creations of find, expressed by any mean or fixed in any support, tangible or intangible, can be protected by Copyright.

Art. 7 Intellectual works protected are creations of mind, expressed by any mean of fixed in any support, tangible or intangible, known or to be invented, such as:

I – texts of literary, artistic or scientific works;

II – the conferences, speeches, sermons and other works of the same nature;

III – the dramatic and musical-dramatic works;

IV – the choreographic and pantomimic works, whose stage performance is fixed in writing or any other medium;

V – the musical compositions, with or without words;

VI – the audiovisual works, with soundtrack or not, including cinematographic;

VII – the photographic works and those produced by any process similar to photography;

VIII – the works of drawing, painting, engraving, sculpture, lithography and kinetics art;

IX – the illustrations, geographic charts and other works of the same nature;

X – the projects, drafts and plastic works concerning geography, engineering, topography, architecture, landscaping, set design and science;

XI – the adaptations, translations and other transformations of original works, presented as new intellectual creation;

XII – computer software;

XIII – the collections or compilations, anthologies, encyclopedia, dictionaries, database and other works, which, due to their selection, organization or content provision, constitute an intellectual creation.

A work will be protected by copyright if it:

(i)                   is in the field of letters, arts or sciences,

(ii)                 is original,

(iii)               has been externalized by any medium,

(iv)               is in the legal protection period (article 41, LDA), and

(v)                does not fall in the assumptions of article 8 of LDA[6].

The literary or artistic work does not need to be quality or well-merited. The creation of mind should be externalized and the protection will apply to the way the idea is expressed and not the idea itself. The form is the essence of the work.

Article 8, of LDA, lists what will not be subject to copyright:

“I – ideas, normative procedures, systems, methods, projects or mathematical concepts;

II – schemes, plans or rules of mind acts, games or business;

III – forms in blank to be completed with any information, scientific or not, and their instructions;

IV – texts of treaties or conventions, laws, decrees, regulation, court decisions and other official acts;

V – common information like calendars, schedules, registrations or legends;

VI – names and isolated titles;

VII – industrial or commercial utilization of ideas contained in the works”.

The idea for a plot, story, will not be protected, but if written in a synopsis (short text, or script), the expression of the plot duly fixed (written, recorded) will be protected. Romeo and Juliet, by William Shakespeare, would be a creative expression of that plot. Still, other writers could create new stories on a similar plot[7].

Making use of similar ideas, as inspiration for an intellectual work, is not plagiarism, that is, the someone else’s work presented as one’s own. Plagiarism is not only the real and unauthorized copy of someone else’s work – either artistic, literary or scientific.

It is also, and more commonly, the copy “of the creative essence under different clothing or form”, that is, the undue appropriation of someone else’s production masked by a distinct composition or version to another language, among several possibilities[8].

The intellectual work originality does not confuse with the idea originality, but with the objective and subjective aspects present in the idea structure and development expressed in the work. The analysis of such aspects will, or not, confirm the plagiarism[9].

Remember: in the “Droit d’auteur” system, adopted in Brazil, the authorship is usually attributed to an individual (the creator). In the copyright system, the authorship (and not only the possession) can be attributed to someone that is not effectively the creator.

Despite being called “Copyright Act”, the LDA actually protects the rights’ holder that is not always the author. Article 22, of LDA, sets forth that the author has the moral and equity rights on the work he/she created. Then, it is important to distinguish author and holder:

·         Author:  is the person that created the intellectual work, set forth in the Federal Constitution -Art. 5., item XXVII: “The authors have the exclusive right to use, publish or reproduce their works, transmittable to their heirs for the period legally set”. It is the original root of the copyright.

·         Holder: is the person entitled and with power to explore the work economically. Legally, the holder is the organizer, editor, holder of equity right on a database, for instance.

Article 11, of the LDA, sets forth that the author is always the individual that created the literary, artistic or scientific work, but the protection granted to the author can be applied to legal entities as set forth in the LDA. Thus,:

·         The Individual is the author and original subject of the Copyright,

·         The Legal Entity is the holder of the Copyright – the legal entities cannot be the creators of intellectual work. However, it can be the holder of copyright.

Article 28, of LDA sets forth that “the author has the exclusive right to use, enjoy and arrange the literary, artistic or scientific work” and the work utilization relies on the author’s prior and express authorization, for any modalities, such as:

“I – the full or partial reproduction;

II – the edition;

III – the adaptation, musical arrangement and any other transformations;

IV – the translation into any language;

V – the inclusion in phonogram or audiovisual production;

VI – the distribution, when not intrinsic to the agreement entered on by the author with third parties for work use or exploration;

VII – the offer of works or productions via cable, optic fiber, satellite, waves or any other system that enables the user to select or produce the work to perform it in a time and location previously determined by the demanding party, and in the cases in which the works or productions are accessed by any system that results in payment by the user;

VIII – the utilization, direct or indirect, of the literary, artistic or scientific work, by means of:

a) representation, recitation or declamation;

b) musical performance;

c) employment of loudspeaker or similar systems;

d) sound or television broadcasting;

e) capture of broadcasting in locations of collective frequency;

f) environmental soundtrack;

g) the audiovisual, cinematographic screening or similar process;

h) employment of artificial satellites;

i) employment of optic systems, telephone wires or not, cables of any kind and similar means of communication that might be adopted;

j) show of works of fine and figurative arts”.

Our legislation classifies the creations protected by copyright into works of individual authorship, co-authorship and collective, whether they were created by only one author (individual), in collaboration (more than one author) or when a third person or organization arranges the creative contributions into a third work (collective)[10]..

In the countries members of the Berne Convention, all rights’ holders or foreign authors, originating from other countries members of the Berne Convention, are entitled to protection, without any formality. Therefore, no registration is required.

Although the Berne Convention creates the principle of no formalities, the internal legislation can impose them to protect its own citizens. Some countries create formalities for their own citizens since they are entitled to such right (in most countries with common law tradition, however, the fixation is a condition: the work should be written or recorded).

In countries with civil law tradition, such as Brazil, the works are protected from their creation, which certainly results in the need to prove the creation in the courts. The LDA establishes that such right protection set forth in such law does not require registration. Therefore, the work is protected by the mere fact that it was created, but it should be “fixed” (recorded or written in a physical support).

Article 19, of LDA, establishes that the authors can register their works with the competent public body. Such non-mandatory registration is important because it becomes a relevant evidence in a court in case of divergence on the work authorship.

The creator of the intellectual work (author) can receive the moral and equity benefits resulting from his/her creation. Two rights are covered by copyright: moral and equity rights:

(I)                  Equity: enable the rights’ holder to receive a financial benefit when third parties use his/her work. It refers to the use and economic exploration of the work and the author can assign (transfer) to third parties or license (authorize) third parties to use it, without transferring the rights.

(II)                Moral: it has a personal, perpetual, non-alienable, unavailable and non-attachable nature. It lies among the rights of personality[11]. Adriano de Cupis (2004, p. 336) teaches that the powers underlying moral rights are generally deemed of the intellectual paternity guardianship, which is represented “by the indissoluble spiritual bond between the author and his/her work and constitutes a moral behavior of the own author[12]. They enable the author to adopt certain measure to preserve the personal bond existing between him/her and the work. The author’s moral rights are non-alienable and non-renounceable (art. 27 LDA) and are listed in article 24 of the LDA.

The copyright norms apply to the rights of interpreters and performers, phonographic producers and broadcasting companies; the interpreters have the moral rights of integrity and paternity of their interpretations, including after assignment of the equity rights, without prejudice of the reduction, compacting, edition or dubbing of the work that they worked in, under the producer’s responsibility, which cannot disfigure the artist’s interpretation.

As no right is absolute, article 46 of the LDA lists what is not a copyright violation, that is, the “limitations” of Copyright:

I – reproduction:

a) in the daily or periodic press, of news or information article, published in the daily or periodic vehicles, which mentions the author’s name, if signed, and the source publication;

b) in the daily or periodic vehicles, of speeches given in public meetings of any nature;

c) of pictures, or another image representation, made-to-order by the owner of the object ordered, without opposition of the therein represented or his/her heirs;

d) of literary, artistic or scientific works for exclusive use of visual-impaired people, whenever such non-commercial reproduction is made in Braille or another procedure in any support for such users;

II – in a single specimen, of short excerpts, for private use of the copyist, provided that made by him/her without profit intent;

III – quotation in books, newspapers, magazines or any other mean of communication, of excerpts of any work, for the purposes of study, review or controversy, in the measure justified for its purpose, with indication of the author’s name and work source;

IV – the collection of lessons at schools by their intended users, prohibited their full or partial publication without prior and express consent of the teacher;

V – the utilization of literary, artistic or scientific works, phonograms and radio and television broadcast in commercial establishments, exclusively for their clients, provided that these establishments trade the supports or equipment that enable its utilization;

VI – the theatrical representation and musical performance, carried out in a family environment or for exclusive educational purposes at schools, not intended for profit;

VII – the utilization of literary, artistic or scientific works to produce judicial or administrative evidence;

VIII – the reproduction, in any works, of small excerpts of preexisting works of any nature, or full work, if fine arts, whenever the reproduction is the main purpose of a new work and does not harm the normal exploration of the work reproduced or cause unjustified damage to the lawful interests of the authors”.

Still, article 47 of the LDA sets forth another copyright limitation: if free the paraphrases and parodies, which are not genuine reproductions of the source work even if for economic purposes, nor implying in discredit..

The limitations above do not rule collection digitization for the purposes set forth and availability of the digital object, preventing public access to rare works or old issues, or on reproduction of sold-out works, when such reproduction is justified, on or licit utilization of intellectual works, in cases similar to those set forth in the LDA, although not expressly contemplated. During public consultation for LDA amendment, items IX, X and XII were added to article 46, on these two topics.

According to BASSO, Maristela, the fair use, created in the United States, limits the copyright. It is a test to determine if the use of any material protected by such rights, not authorized by the holder, constitutes or not a violation act[13].

Article 9:2 of the Berne Convention, ratified by Brazil in 1975, restricts the application of copyright limitations through a “three-step rule” and determines the fair use of such rights and unauthorized reproduction by third parties only in the following assumptions:

(i)                   in certain special cases;

(ii)                 that do not conflict with the regular commercial exploration of the work and,

(iii)               do not harm the lawful interests of Author without justification.

And any use that does not pass “three-step test” will be deemed “unfair use” (unauthorized use and, therefore, illegal)[14], that is, it:

(i)                   is not characterized as special/exceptional use;

(ii)                 interferes with the regular commercial exploration of the work, and

(iii)               harms the lawful interests of the right holder without justification.

The equity rights are not eternal and, after the legal term ends, the work enters public domain and its use is free. It is not necessary to obtain heirs’ authorization or pay for its use. However, the free use does not allow to use translation of the work if they are not in public domain.

The minimum term established by the internal legislation, according to the Berne Convention is of 50 years. This term was prolonged for 70 years from author’s death for some countries, such as the members of the European Union and the United States of America.

The term is calculated from the end of the year in which the author died, and the minimum term of protection for the photographic works and art works is of 25 years after work realization.

4.5.3.      PROTECTION OF WORKS CREATED AND MADE AVAILABLE IN DIGITAL ENVIRONMENT

It is important to understand how the copyright affects people’s routine. They find it fine to download a video, use an image on the Internet without consent, without knowing they might be committing a crime. It is not because the work is on the Internet that it is free for use indiscriminately.

The Internet is the new frontier. New models are being tested there, new ways of remuneration linked to the number of views, song streaming. There is also a huge market of movies and series via on-demand streaming.

As mentioned initially, the copyright protects the original and traditional works in the digital environment; and the copyright rules applied for conventional works in physical medium also apply for digital works. Therefore, one cannot appropriate unduly of what is being shown on the Internet once such content/work can be protected by copyright.

As regards copyright, in Brazil, the relevant legal provisions and treaties apply equally for digital and online content.

With no intention to exhaust the subject, we will address herein only a few forms of copyright, considering the new business models developed in the digital environment:

a)     E-BOOK COPYRIGHT

Publishing market has changed deeply due to the Internet, mainly with the traditional printed model transformation. Copyright holders are looking for ways to protect their rights, to obtain their financial return on the creation, and the Internet is the most dynamic medium for such.

Such transformations have significantly changed the way publishers operate in the market. Now publishers are entering on partnerships with technology companies, e-reader and tablet producers to establish their market shares by investing in digital documents, ensuring the return and investments through copyright remuneration.

E-book stands for electronic book or digital book in Portuguese. An E-book is a digital file of information content, normally with a predominant text, which enables further the presentation of other formats, such as audio and video[15]. Th E-book has various formats[16]:

–        PDF: it can be performed in several programs browsers, e-book readers and the own Adobe Reader. Any computer or smartphone can read it;

–        EPUB: a file created specifically for e-books. It is based on HTML, the same language of websites.

–        MOBI: file format proprietary of Amazon, specially developed to be performed in the e-book reader, the Kindle.

–        DOCX, RTF, TXT, HTML or in other formats of different manufacturers.

These are practical and efficient means to disclose any literary art for a large number of people. To read it one just needs a specific software found on computers or an application on a mobile.

This way of publishing can be used commercially both by authors that want to receive their deserved copyright and those who want to disclose certain work primarily on a free basis[17] (the fact that it is disclosed freely does not release author’s copyright).

Behind the printed book there is a whole production chain: the author, the publisher, the press, the distribution logistics, the book stores and the consumer. As regards the e-book, this chain is downsized. We see the author, some publishers, the means of access to the e-book and the consumer (INATOMI and NASCIMENTO, 2011; FERREIRA et al, 2012; GRAU et al, 2013). These are players in the scope of the E-book[18]:

–       Publishers: they are responsible for the published works and can sell them directly to the bookstores or offer to aggregators, distributors or virtual stores.
–       Content Aggregators: These are companies that represent several publishers and offer almost all models of existing business. They license content of several suppliers and provide them in their platforms.
–       Distributors: Similar to the aggregators, with the exception that their access tool is the publisher, since they do not have proprietary platform.
–       Virtual Stores: The virtual stores can supply the libraries, however, the possibilities of subscriptions are limitless, giving priority to the perpetual acquisition with single user access to the e-books.
–       Author: Authors can also supply. The self-publication phenomenon has been largely discussed, but it is not clear whether it can be deemed a new business model.

Numberless online publications of e-books are available on the Internet on various topics. It is important to observe that article 29 of the LDA sets forth that the partial or full reproduction of the work by third parties requires prior express consent.

It is not possible to make a copy for personal use since the partial or full reproduction, regardless the purpose, is legally permitted; however, a copy of small excerpts for the exclusive use of the copyist.

The LDA entitles the author to obtain the credits for his/her creation, ensures that his/her works will not me modified with prior consent and he will be remunerated by third parties that want to use the works produced. Either on the Internet or any other medium, the indiscriminate and unsuitable use and reproduction and distribution of literary, artistic or scientific works without prior authors’ consent are not admitted. They constitute violation of copyright and, under article 184 of the Criminal Code, it is a crime[19].

Article 4 of the LDA sets forth that judicial business on copyright are construed restrictively. Even if the copyright’s holder has authorized the work reproduction in a physical medium, its reproduction in a digital version requires the holder’s express authorization relating the way this work will be disclosed and traded and in which formats or supports. For instance, the work can have its version printed by certain publisher and the electronic version by another.

Although not mandatory (article 18 of the LDA), it is recommended to register the digital work with the National Library to give the holder more safety in case of conflicts involving authorship doubts.

The blockchain is a kind of ledger that can be used to record and validate information and asset transactions. It stores chronologically all transactions, turning them immutable; so, it can help in this task. Once the information is recorded in this system, it cannot be changed or deleted. It comes with a timestamp that precisely marks the date and time of inclusion.

The blockchain is an effective method for an authorship test and as priority for the official registration with the relevant body[20].

More and more authors have chosen the online publication in some virtual platforms. Companies and platforms that sell e-books enter on an adhesion agreement, a license for indefinite time, but unilaterally revocable of the E-book[21]. The digital work’s holder, in this case the e-book, must pay attention to the contractual matters, such as:

·         The agreement term, the period between draft acceptance and e-book publication, the period for the publisher to produce the formats permitted by the agreement. The LDA establishes legal limits for publication periods (articles 53 to 67)[22].

·         The agreement scope territory;

·         The holder’s consent relating the work publication, if printed, audiobook and/or e-book;

·         Clauses of work availability in relation to the new functionalities available for any applicable distribution system or digital electronic device or other, known at the time of the agreement or subsequently created;

·         Clause of non-competition so that the author cannot compete with the publishing house during agreement effectiveness.

The works can be easily copied, plagiarized, cloned, manipulated, altered, edited and translated by the cybernaut, either for his/her own use or even for commercial purposes, without any strict control or inspection. To protect digital works and prevent the unauthorized copy of an electronic file, the Digital Rights Management (DRM) was created.

The publishing houses and technology companies are taking measures to restrict the access and share of documents, such as the digital rights management (DRM), license per click, among others, which makes it harder the management of the Digital Libraries[23].

Some protections more commonly used are slowly entering the Brazilian market:

·                     Copyleft – created in the United States, it is a method to turn any software (or another work) free and require that all versions modified and software extensions are also free[24]. A free software is that released for use, copy and alterations. It is possible to change the software, create applications and correct errors, leaving all these changes equally released for more alterations[25].

·                     Digital Rights Management (DRM) (it is the protection against illegal copies in Brazil): The DRM is an electronic protection applied to digital content (music, films, books, games, etc.) to prevent the undue use of files. It uses cryptography for files and is the protection used for e-books. It assures the copyright of the publishing market and that of the reader’s that will acquire a product that is more useful for his/her intent (REIS and ROZADO, 2013)[26].

·                     Creative Commons (CC) (free license with bigger flexibility in work use). It is a non-profitable world organization that enables to share and reuse creativity and knowledge by supplying free tools. The Creative Commons licenses offer a way to manage the copyright terms that apply automatically to all creative materials under copyright[27].

b)    COPYRIGHT FOR STREAMING:

Technology, new business, mainly on the Internet, has evolved astronomically. In the last few years, we used to watch movies at the movie theater or rent VHS tapes or DVD at video rental shop. We listened to songs on cassettes or CD’s. We used the AM, FM radio stations to listen to music or the news.

Nowadays we download this content. This is the streaming era, which has revolutionized the way we consume copyright. Nowadays we watch movies, series, shows, news, listen to music on a computer or cell phone, via on demand streaming, which makes access and content interaction easier.

The globalized world and information share speed have reflected on the data streaming.

Streaming is the online data distribution on the Internet. Downloading was put aside to open room for streaming services, which enable more interactivity.

It is important to know the streaming modalities since they affect the Brazilian law. Interactive and non-interactive streaming: there is no interaction in the non-interactive streaming. This includes traditional radio stations where the user cannot choose what to listen, there is not freedom of choice.

In the on demand interactive streaming, the user starts the work broadcast, chooses what and when to see certain content. It is known as webcasting (video and audio broadcasting using streaming media). This modality contains most of the current streaming.

The big advantage of streaming is that it offer temporary access to music, without possibility of storage by the user. It is not an online radio since the user of that service can select the music to be listened, manage playlists and share content (DANGNGUYEN et. al. 2012, p. 5). This has changed the music property paradigm for music accessed and the streaming remunerates the authors for the music accessed.[28]

With the Internet consumption growth, the copyright regulation in digital media has been constantly discussed. Paragraph 2, of article 68, of the LDA, sets forth musical public performance:

Art. 68. §2 Public performance is the utilization of musical or literary-musical compositions through artist participation, remunerated or not, or the utilization of phonograms and audiovisual works, in locations of collective attendance, by any process, including radio broadcasting or transmission by any modality, and cinematographic exhibition.

Paragraph 3 lists which locations are deemed “locations of public attendance”, which raised doubts whether the digital environment can be deemed a location of collective attendance:

Art. 68 §3 Locations of collective attendance are theaters, cinemas, ballrooms, concert halls, nightclubs, bars, clubs or associations of any nature, stores, commercial and industrial establishments, stadiums, circus, fairs, restaurants, hotels, motels, clinics, hospitals, public organs of direct and indirect administration, foundations and state-owned companies, road, sea, river or air means of transportation of passengers, or wherever literary, artistic or scientific works are represented, performed or transmitted.

According to article 99, of the LDA, the associations linked to musical rights have a single office (ECAD – Central Office of Collection and Distribution), to collect and distribute property rights of public performance of musical works, and the associations will privately set the prices for the use of the works.

Art. 99. The rights relating public performance of musical and literary-musical works and phonograms will be collected and distributed by collectively-managed associations created for such purpose by their holders, which must unify the charge in a single central office for collection and distribution, which will operate as collecting entity with own legal personality and observe §§ 1 to 12 of art. 98 and articles 98-A, 98-B, 98-C, 99-B, 100, 100-A and 100-B.

The leading case involving streaming and collection in Brazil is the RESp no. 1.559.264/RJ, in which ECAD filed a lawsuit against a radio station requiring that performances and broadcasting were stayed until royalties of public performance of the radio on the Internet were paid to ECAD. The radio station carried two public performances: simulcasting and webcasting.

The STJ reviewed if the broadcasting of these new technologies via Internet would configure public performance and then generate charge of copyright. The final part of article 68, §3 mentions “wherever literary, artistic or scientific works are represented, performed or transmitted”.

Therefore, the Internet is included as location of collective attendance, regardless the quantity of people found in the musical performance environment. It just requires the potential to reach a certain number of consumers via the Internet.

Based on the above, the STJ determined that streaming is a public performance and the right to put his/her work at disposal of the audience, that is, the provider keeping his/her content public, is an act of public performance, in the terms of article 29, item VII of the LDA, encompassing, per gender, public communication (article 5, V. of the LDA), covering the interactive digital broadcasting.

The minister Marco Aurélio Bellizze (STJ) contradicted the majority understanding and defended that the Central Office of Collection and Distribution cannot charge Copyright of music played on the Inernet in the modalities of webcasting e simulcasting and, although it shows the work to the community, it only makes feasible the individual and temporary consumption, which will be carried out from the integration of the consumer’s will, who will choose to receive it whenever convenient.

For Bellizze, music webcasting is a new, autonomous service distinct from public performance. As regards simulcasting, a new charge of royalties would result in double payment since the amounts for public performance, on the radio, had already been paid in the source (once the radio has already paid ECAD that amount due to play the music in the conventional medium during broadcasting), that is, the same generating factor.

He argued that “in case of simulcasting performed exactly by the same person, individual or legal entity, contracting and payer of copyright, the new charge claimed results in duplicity that does not originate from provision of a new service”[29].

ECAD is an association of collectively-managed associations that centralizes the collection and distribution of the rights deriving from public performance. It is ECAD that sets the prices to be charged for the work use.

The controversy was then tried by the STF and simulcasting and webcasting are public performances, which legitimizes ECAD to collect such amounts[30]. It was decided that the streaming of music and literary-musical works on the Internet configures public performance of protected works and is subject to pay ECAD the royalties. Nowadays, the term make a music available is used instead of “play a music”.

c)     COPYRIGHT OF YOUTUBE VIDEOS:

Article 5, item VIII, “I”, of the LDA, sets forth that an audiovisual work: “results from the fixation of images with or without sound, intended to create through its reproduction the impression of movement, regardless its capture processes, the support initially used or subsequently to fix it, as well as the means used for its broadcasting”.

With the Internet, websites, social media, digital platforms of music, of storage services of data, videos, audios, etc., it has become easier to make available and communicate these audiovisual works to a larger number of people[31]. Among the diverse content created, the following audiovisual material is subjecto to copyright on YouTube[32]:

·         Web series;

·         TV programs;

·         Video clips;

·         Soap operas;

·         Videos produced by youtubers;

·         Music or sound recording;

·         Written works published in videos (books, lectures, scientific articles and musical scores);

·         Visual arts (paintings, posters and advertisements);

·         Games and computer software;

·         Theatrical works and shows.

Videos made and disclosed on YouTube are becoming more and more part of our everyday scenario of communication and more visible as long as people share them on the digital platforms.

Nowadays, we are familiar with content makers on YouTube, the YouTubers, digital influencers creating media in the YouTube platform, with profitable purposes or not. People usually make and share videos to tell stories of their personal lives, making home videos with popular music and images.

All practices that configure illicit acts in our everyday are prohibited on the Internet. While making and sharing a video on digital platforms, one must observe the national legislation and the good practices and rules of the own platform.

Before publishing, copying, playing any video on the Internet, one must get the authorization of the copyright’s holder, the producer or author for online reproduction. It is not permitted to modify the video without author’s consent.

According to YouTube, the acceptable use is a legal doctrine that authorizes the reutilization of materials protected by copyright under certain circumstances, without the need of permission of the copyright’s owner. However, before sending a copyright takedown notice, the copyright’s holder must verify if that video would fit any assumption of fair use and/or the limitation imposed in the LDA.

The Center for Media and Social Impact prepared a code of recommended practices, of acceptable use, for online videos, covering six topics:

(i)                   commenting or criticizing material protected by copyright,

(ii)                 using material protected by copyright for illustration or examples,

(iii)               capturing material protected by copyright incidentally or accidentally,

(iv)               reproducing, republishing or quoting to memorize, preserve or recover an experience, event or cultural phenomenon,

(v)                 copying, restoring and circulating one work or part of one work in order to begin a discussion,

(vi)               quoting to recombine elements to create a new work that depends on its meaning in the relationships[33].

YouTube receives several takedown requests, in conformity with the copyright laws, to take down videos that the owners claim to violate their copyright.

The copyright’s holders can use a system called Content ID (an algorithm that inspects automatically all videos that are published) to identify and manage easily the respective content on YouTube and the majority of videos that use music that can violate copyright.

YouTube attributes one Content ID only to copyright’s owners that comply with specific criteria, such as:

(i)                  if the content of the copyright’s owner can or not be claimed through Content ID,

(ii)                 the need must be shown,

(iii)               it is necessary to present proofs of the content with copyright that control the exclusive rights;

(iv)               present the ISRC, ISWC (identification certificates of phonograms and works), UPC (Universal Product Code), title, composer’s data;

(v)                 to obtain approval, the copyright’s holders should have the exclusive rights for the material evaluated and will have to provide the geographic locations of exclusive property in case it is not worldly.

The copyright owners can decide what happens when the content of a video on YouTube matches the work of their property. When this happens, the video receives a Content ID claim. The copyright’s holders can opt between different actions to apply to the material that matches theirs:

·         Blocking the video viewing fully.

·         Making a profit with the video by means of advertisment. Sometimes the revenue is shared with the sender.

·         Monitoring the viewing statistics.

Besides Content ID, YouTube provides several tools for copyright’s owners to protect and manage their respective content on YouTube. If they own the copyright, their needs of copyright management help to determine the suitable tool. You can find further information around these options below:

·        Takedown from Web for copyright violation: for the majority of copyright’s owners, this is the simplest and quickest way to request takedown for copyright violation.
·        Copyright Match Tool: The tool tracks full video loading, and it is possible to send an e-mail to the sends of the matched content, request the immediate takedown of the content, request the content scheduled takedown (7-day notice).
·         Content verification program: The tool enables the copyright’s holders to research the materials they consider a violation, and can send takedown requests for copyright violation relating several videos simultaneously.

The utilization of any of these tools to send a takedown notice begins a legal proceeding on YouTube. The undue utilization can result in suspension of the user’s account or other legal consequences.

On Aug, 2019, YouTube posted the updates of the claim policies of the Content ID manual because it noticed a worrying trend with the aggressive manual claim of very short music clips used in monetized videos.

The purpose is to refrain the growing number of copyright claims related to small sections of music on YouTube. This rule is valid only for short sections or those played unintentionally in the platform.

Under prior rules, the copyright’s holders, who identified the use of sections of music, could obtain the revenue generated with the ads on the videos and that originally would be directed to the channel creator.  With the new rules, the holders will only have two options, and the compensation option is ended[34].

(i)              Leave the video, but prevent the content maker from making money with it;

(ii)            fully block the content.

The video content maker should, therefore, avoid using audios, images, copyrighted videos of third parties without the prior authorization. YouTube provides an audio library that can be freely used and will not violate copyright (https://www.youtube.com/audiolibrary/music).

YouTube also changed the rules of monetization and children’s content protection to protect children and their privacy. With the new rules, effective in January 20201, the platform will limit data collected in children’s content.

It will stop broadcasting custom ads on such content and block comments and notifications.[35]. This can directly impact monetization of content producers once custom ads will no longer be shown in these videos.

According to the new rules, from Nov 14, 2019, all YouTube content makers should signal in their own accounts whether they produce children’s content or not. If the content maker fails to do so, the own YouTube will do it. Despite using machine learning to identify children’s videos, the platform states that the mechanism can make mistakes and wrongly tax channels and content.

Thus, any video with characteristics directed to children, but not identified as such, will be punished by the channel. Therefore, any adult channel that uses cartoons or children’s characters can lose its monetization. This identification will be made on an artificial intelligence basis.

Updated on Friday, Nov 22, 2019, YouTube shows the FTC notice (Federal Trade Commission), with information that helps YouTube content makers decide whether their videos bear “children’s content’ or not.  It is necessary to inform whether your videos are children content or not, regardless your home.

These changes derive from an agreement with the American FTC to comply with the Children  Online Privacy Protection Act (COPPA) and/or other applicable legislation. The failure to suitably define the content can result in measures applied by YouTube or legal matters under COPPA and other laws[36].

According to the FTC guidance on COPPA, one video is made for children if:

a)       children are the target audience based on the factors* below described;

b)       children are not the target audience, but the video is destined to them based on the factors* below described:

*Factors:

–        the video theme (e.g.; educational content for pre-school children);

–        if the children are only the target audience or actual viewers of your video;

–        if the video presents children actors or models;

–        if the video shows children characters, celebrities or toys, including those featured in movies and cartoons;

–        if the video language is suitable for children;

–        if the video shows activities that interest children, such as theater plays, music or easily-assimilated games or related to children’s education;

–        if the video has music, stories or poetry for children;

–        other information that might determine your video target audience, such as empiric evidence of the video viewers.

In the USA, people under 13 are deemed children. However, this limit can be wider in other countries. In Brazil, Act 8.069/1990 defines children as people under 12 years old. Therefore, consider the factors above according to the definition of “children” in the laws of your country. Seek for legal counseling in case of doubt.

Video makers outside the USA must consider the national laws while ranking children content. If you fail to rank you content correctly, YouTube can penalize your account.

While making or sharing any video, consider the fair and reasonable use or any exception to copyright that might be applied to your case. We recommend you to seek for legal counseling before sending videos containing copyrighted material[37], as the content broadcast on the Internet should abide to the legislation and copyright policies. The failure to do so might result in indemnifications and configure crime.

d)    GAME COPYRIGHT:

Software is present in every aspect of life: smartphones, tablets, video games, TV sets, computers, ATM’s, planes, cars, etc.

Game market has been growing significantly, In Brazil, it moved US$ 1,5 billion last year, around R$ 5,6 billion, according to Newzoo consultancy.[38] Nowadays, games are part of a new revenue format: “games as services”, as programs that charge subscriptions for access to games or game functionalities[39].

Several game elements can be protected by Intellectual Property:

–        brand,

–        logos,

–        plot,

–        fiction characters or not,

–        cartoon,

–        illustrations

–        screens

–        layout,

–        soundtrack, music, musical compositions,

–        story,

–        drawings,

–        visual elements,

–        audio (composition, performance, recording),

–        texts,

–        source code,

–        etc.

Protecting each element before any competent body (e.g.; the National Institute of Industrial Property [INPI], as well as copyrights in the National Library, School of Fine Arts and Music School) is relevant to bring legal safety to the company business, and avoid that third parties use something equal or similar.

The legislation that protects electronic games is Act 9.610/1998. It sets forth the copyright and protects accessory game elements, such as name, layout, audiovisual work, software literal expression, that is, its source code lines.

Art. 7 The creations of mind, expressed by any mean or fixed in any support, tangible or intangible, known or invented in the future, are intellectual works, such as (…) computer software.

Software is the instrument of digital games. So, the protection related to computer software is present in these games (GROSHEIDE; ROERDINK; THOMAS, 2014). The computer software is protected as literary work (source code).

Act 9.609, of Feb 19, 1998, and Decree 2.556, of Apr 20, 1998, rule computer software protection. They enable to register them with INPI. Further, we have the Normative Instruction 099/2019, which sets forth the procedures relating to the RPC.

Article 1 of Act 9.609/1998 defines software:

[…] organized set of instructions in natural or coded language, contained in physical support of any nature, to be necessarily employed in automatic machines of information treatment, devices, instruments or peripheral equipment, based on digital or analog technique, to make them work for certain purposes.

It is also possible to register the software with the INPI (National Institute of Industrial Property), which will protect the set of instructions written in source code. As long as new versions of the same software are developed, these can also be registered with the INPI.

Although it is not legally mandatory to register the software, its registration is crucial to evidence its authorship with the Judiciary, and it can be useful in proceedings of disloyal competition, unauthorized copies, piracy, etc., assuring bigger legal safety to its holder to protect its business asset.

The right is valid for 50 years from Jan 1 of the year subsequent to its publication or, in its absence, its creation[40]. The software registration is not territorial, that is, its coverage is international, comprising the 175 countries signatories of the Berne Convention (1886).

We should outline that conceptual software, that is, in the field of ideas, is not subject to protection. We can cite, for instance, as technical effects: optimization (of the performance time, hardware resources, memory use, database access), interface upgrade with the user (not merely aesthetic), file management, data transmission, among others (INPI, 2011)[41].

A technical solution, either by means of process or process-related product, is subject to invention patent protection, provided that it does not refer to the computer itself.

e)     COPYRIGHT IN THE MUSICAL SCENARIO

The use of music, soundtrack, parts of movies and other visual content is subject to copyright regulation. Article 7 of the LDA cites dramatic and musical-dramatic works and musical compositions, whether they have words or not, as copyrighted.

The LDA sets forth that the copyright’s holder of a musical work is the composer or his/her co-authors, if any (articles 15 and 23). And, by means of connected rights, producers, broadcasting companies and particularly musicians and singers (the latter named by the provision as interpreters and performers), can also be considered holders, all set forth in provisions of article 5, XI to XIV[42].

DJs make use of mixing, effects, remixing, cuts, modifications and sampling. According to CARBONI[43], while performing live, one DJ does not need authorization form holders of copyrighted songs to use technical resources and make remixes and mashups. However, remixes and mashups require such authorization under penalty of lawsuits lodged by the copyright’s holder.

There are music archives that can be used free of charge, without copyright permission. Further, some practices are permitted to use third party’s material without violating copyright. This is called fair use[44] and the copyright limitation restricts to the use of small sections of the songs.

According to articles 24 and 29 of the LDA, the artist that samples should obtain authorization of the composer of the work used and credit it in the music to be created, under penalty of violation of moral and property damages of the author[45].

However, it is necessary to review the context to check whether the sample violates the copyright or not. The LDA mentions that the use of small sections does not constitute copyright violation:

“Art. 46. The following does not violate the copyright:(…) VIII – the reproduction in any work of small sections of preexisting works of any nature or of full work, in case of fine arts, whenever the reproduction itself is not the main purpose of the new work and it does not harm the normal exploration of the work reproduced or cause unjustified loss to the lawful interests of the authors”.

–        Feats and beats. Who is the author of the musical work?

The way of making music has been changing. Nowadays, the hits are created in “colab” and in several hands. This raises the question: who is the author and has rights on the music after all?

Music is protected by copyright and nowadays it is too easy to download and share music on the Internet. However, we should be aware that any kind of reproduction, distribution or public performance of any registered and protected music, without prior authorization, is illegal. The violators will be liable for the legal penalties.

We have two new categories in the musical scenarios of rap, hip hop, R&B, electronic, pop. One is the beat. This is the base from which the musical works of these genders are made. It is often the starting point of a composition, creating a melody and a music from it. Those who create these beats are the beatmakers.

The feat became relevant with hip hop and electronic music rise. There is a controversy in Brazil if beat’s author, in a section of the music, would be a musical production and not a composition. In the United States, the beatmakers are also considered authors even if after the music is structured.

A new musical business has become stronger on the Internet. It is the beat sales without exclusivity clauses (a non-exclusive license of such beat is granted, which can be used several times by the same author in different songs), which raises questions about the copyright.

The LDA enables the author to sell, assign his/her property rights (never the moral rights, which will always remain with the original author of the work, regardless the author’s will to dispose of them, under the LDA). Therefore, this kind of license is deemed legal. However, in case this beat is played publicly and so that the authors can receive their remuneration, their names should appear in the phonogram registration with the phonographic producer[46].

Each economic exploration of an intellectual work should be preceded by an express authorization of said author or copyright’s holder with as many details as possible, support (analog or digital), validity term and discrimination of copyright transfer instrument, that is, assignment or license, in the terms of article 49 of the LDA.

Therefore, even if the author assigns this beat, he/she will be also entitled to oppose to any use that he/she does not agree with, one of the prerogatives of the author’s moral right. The author can, for instance, oppose to certain deformation of the work that affects its cultural or artistic integrity.

Although not mandatory, the music registration is recommended as proof of authorship. The music cab be registered with the National Library (or UFRJ Music School).

The musician should become member of a musician association that will distribute the copyright whenever the music is played publicly. There are musician associations in Brazil: ABRAMUS, AMAR, ASSIM, SBACEM, SICAM, SOCINPRO and UBC. After the musician registers the phonograms, he/she gets an ISRC, single code for the music, where we can broadcast in on Spotify and YouTube.

4.5.4.      COPYRIGHT VIOLATIONS ON THE INTERNET

The copyright assures the intellectual property’s holders the exclusive use on their creations, works and inventions. This means that no third party can use such assets without prior and express authorization. Otherwise, such party can be subject to indemnification, product takedown, among other possibilities.

The way you use third party’s content can violate the holder’s copyright even if you:

·         Give credit to the copyright’s holder.

·         Include a legal notice that you do not intend to violate the copyright.

·         State that it is a fair use.

·         Do not intend to make a profit out of this use.

·         Buy or download the content (e.g.; a DVD copy or iTunes music).

·         Modify the work or add your original material to it.

·         Find the content available on the internet.

·         See that other people also published the same content.

·         Record the content with your own recorder (e.g; from a movie, concert, sports event, etc.)[47].

The electronic medium complies with Act 9.610/98, and consequently it enables the claim for copyright violation.

In case of copyright violation on the Internet, the right’s holder can file for compensation for damages suffered (material and moral) since they are supported by Act 9.610/98, in the Federal Constitution, article 5, X, in the Civil Code (personal rights), in the Criminal Code (article 184[48]), among other national laws and international treaties.

The material rights are arbitrated under article 102 and following of Act 9.610/98. As regards the Internet, article 103 sets forth the sanction for the loss of samples apprehended and payment for those sold, of literary, artistic or scientific work edited without authorization of the copyright’s holder[49].

Article 103 of the LDA sets forth that the offender of copyright will pay, as property indemnification, the amount of samples he/she has sold, which matches the number of samples fraudulently edited, used, arrested or sold, multiplied by the unit amount.

In the event the violation occurs on the Internet, the number of samples fraudulently edited matches the number of users’ access that the intellectual work reached, inside the violating website, and the offender’s equipment requires expert analysis, that can easily conceal such data, without any trace,  just apply the provision above and calculate the indemnification on the work amount, multiplied by 3,000, without any obstacle[50].

“The copyright is considered movable assets and can be disposed of, donated, assigned or rented. The author is entitled to allow third parties to use artistic creations.

The work’s author holds the moral rights – acknowledgment of his/her creation, ideas, personality and work; right to work integrity – consistent with the impossibility of change without his/her express consent; and property rights – commercial exploration of his/her work, its utilization relying on authorization.

Thus, if these constitutional rights are offended, indemnifications will accrue for moral and material damage”.[51]

(i)            UNDUE USE OF THIRD PARTY’S COPYRIGHTED CONTENT ON THE INTERNET: VIDEOS ON YOUTUBE/SOCIAL MEDIA/IMAGES, VIDEOS AND AUDIOS AVAILABLE ON THE INTERNET:

According to article 29 of the LDA, it is not possible to use pictures, images and texts extracted from the Internet because they are not necessarily free for use[52], therefore, it follows the general rule set forth in art. 29 of the LDA, it requires prior authorization of copyright’s author/holder.

So, it is necessary to check (i) whether the work is under public domain or not and (ii) whether the image copyright (property rights) was made available. The same procedure goes for audios and videos taken from the Internet.

If the work is not under public domain (that is, the legal copyright term has expired), an authorization should be obtained from the intellectual work’s author, under penalty of copyright violation, and legal measures can be taken by the copyright’s holder.

(ii)                COPYRIGHT VIOLATION IN THE CYBERSPACE AND THE RESPONSIBILITY OF INTERNET APPLICATION PROVIDERS FOR COPYRIGHT VIOLATIONS

The person whose copyright is violated on the Internet can file for arrest of the samples reproduced or broadcast stay, by any mean, or proceeding used for the practice of illicit act, and applicable indemnification.

In these terms, the copyright’s offender, that is, the Internet user, who violated someone else’s right for lack of authorization to practice the act, should be made liable for the illicit act, on a criminal and civil basis. When the lawsuit requirements are present (cause connection and damage), the success possibility is high. The doctrine, jurisprudence and legislation have no doubt on such aspect.

However, what about the providers and websites where the content copyrighted is shared? Would it be possible to make them liable under the current LDA?

With the Internet Civil Landmark (Act 21965/2014), hereinafter MCI, new changes were made. As regards responsibility, there is the limit that the provider of Internet connection will not be made liable civilly. The MCI is the first Brazilian law that deals with the civil responsibility of Internet providers for third party’s acts.

The American system already addressed such issue with the Digital Millenium Copyright Act (DMCA), which sets forth the providers’ responsibility upon Copyright and was promulgated by the American Congress in 1998.

Section 512, of the DMCA, sets forth that some copyright guardianship ways in virtual environment and the judicial notice and takedown proceeding were the base for the Brazilian proceeding, and its paradigm (notification and takedown), occurred with Resp. 1.308 830, RS.

Article 18 of MCI sets forth the exemption of responsibility of the providers of connection, and releases the backbone providers and access providers. As per Leonardi Marcel, the providers of Internet services are 5, specialized, classified in kinds, with different sub-items[53], according to the STJ understanding in the REsp 1.568.935 RJ.

a)       Backbone providers (optic fiber cables that set Internet speed, selling their use for access providers, which, in their turn, resell them to the users, which will hardly be in touch with the backbone provider, [54]

b)      Information providers (produce information disclosed on the Internet),

c)       Content providers (provide on the net the information created or developed by the information providers, which can also be providers),

d)      Access providers (use the infrastructure of backbone providers and resell its use to end users, enabling the connection with the Internet),

e)      Hosting providers (supply data storage in remote access servers, enabling third parties to access such data.[55]

Article 19 of “MCI” sets forth the possibility of making application providers liable, after specific court order, and, if, after such order, they do not take the measures within the term established, what would be a kind of “judicial notice and takedown”, in respect of the principle of freedom of expression, in a clear concern of the lawmaker relating the implementation of censorship on the Internet.

Thus, the provider’s responsibility will occur only in the cases of article 19 of MCI, with application of the criteria indicated in paragraphs 1, 3 and 4 of said legal provision, this immunity is not applied in cases of unauthorized violation of intimacy, under article 21 of MCI.

Said articles of MCI do not focus on the solution of out-of-court conflicts, which ends up burdening the victims of copyright violations committed on the Internet, who will file for court measures to settle the violation, since the providers’ acts could extrajudicially configure censorship, under the fear that social media will indistinctly take down content and fear the joint responsibility for violation of copyright of third parties.

The community has intensely discussed that this path, currently adopted, has created a hindrance for the victim of violation; in the cases of unquestionable violation, it would be easier, faster, and less expensive to settle the issue out of court (American system – notice and takedown): the provider, when notified, must take down the content under penalty of being jointly made liable.

In the digital era, given the potential of fast share, this system (notice and takedown), opposed to that adopted in Brazil (judicial notice and takedown), is more effective since its result would be the fast takedown of the copyrighted work from the Internet, and the delayed conflict settlement by the Judiciary would turn the damage irreparable.

[1] https://www.pucsp.br/tutelacoletiva/download/artigo-regina_e_anna.pdf
[2] Manual de Direitos Autorais / Carolina Panzolini, Silvana Demartini. – Brasília: TCU, General Administration Department, 2017.
[3] http://www.direitoautoral.com.br/arquivos/livro-1d.pdf
[4] https://www.abramus.org.br/noticias/8482/afinal-o-que-e-direito-autoral/
[5] Curso OMPI , module 2 – Copyright.
[6] http://eduardomagrani.com/wp-content/uploads/2018/04/Cartilhas-versa%CC%83o-final-1.pdf
[7] Curso OMPI, module 2. Copyright.
[8] http://vrac.puc-rio.br/cgi/cgilua.exe/sys/start.htm?infoid=726&sid=23
[9] https://repositorio.enap.gov.br/bitstream/1/2992/1/M%C3%B3dulo_1_Obras%20Intelectuais.pdf
[10] http://www6.ensp.fiocruz.br/repositorio/node/368247
[11] It would be the right to connection made to the person that made it, constituting inseparable right of the person with legal basis in the right to will, right to honor, right to personal identity and right to name in view of the exercise of freedom of discovery and invention or of literary, artistic or scientific production. (PONTES DE MIRANDA, 1955, p. 139-155).
[12] https://www12.senado.leg.br/ril/edicoes/46/184/ril_v46_n184_p105.pdf
[13] http://www.egov.ufsc.br/portal/sites/default/files/67766-89196-1-pb.pdf
[14] http://www.gedai.com.br/wp-content/uploads/2019/06/045-O-FAIR-USE-E-A-REGULAMENTA%C3%87%C3%83O-DO-USO-DE-SAMPLES-E-COVERS-EM-OBRAS-MUSICAIS-NO-DIREITO-AUTORAL-BRASILEIRO.pdf
[15] https://www.geniusdesign.com.br/br/blog/item/151-ebook-epub-livro-digital-e-livro-eletronico-o-que-sao
[16] https://www.geniusdesign.com.br/br/blog/item/151-ebook-epub-livro-digital-e-livro-eletronico-o-que-sao
[17] http://www.casadacultura.org/apresentacao/public_ebook.html
[18] https://santabiblioteconomia.com.br/2016/06/21/direito-autoral-e-ebooks/
[19] https://bibliotecasma.org/direito-autoral-e-o-livro-eletronico/
[20] https://pris.com.br/blog/o-blockchain-e-o-futuro-da-propriedade-intelectual/
[21] https://jus.com.br/artigos/33184/a-ilicitude-do-digital-rights-management-drm-no-direito-brasileiro
[22] https://simplissimo.com.br/seis-itens-essenciais-qualquer-contrato-ebooks/
[23] https://pantheon.ufrj.br/bitstream/11422/1054/1/TCC_Adriane.pdf
[24] https://www.gnu.org/licenses/copyleft.pt-br.html
[25] https://super.abril.com.br/cultura/o-que-sao-direitos-autorais/
[26] https://www.redalyc.org/pdf/1995/199543036060.pdf
[27] https://br.creativecommons.org/faq/
[28] Music and development streaming: a good alternative as regards copyright? ABPI magazine no. 139, Nov. Dec. 2015.
[29] https://www.conjur.com.br/2016-nov-10/ministro-cobranca-direito-autoral-musicas-web
[30] Brazil. Court of Justice of the State of Rio de Janeiro. Civil Appeal no. 0174958.45.2009.8.19.0001 reporter: Federal Judge Antônio Saldanha Palheiro. Rio de Janeiro, Rio de Janeiro, Apr 12, 2011.
[31] https://jus.com.br/artigos/50835/a-protecao-aos-titulares-de-obras-audiovisuais-disponiveis-na-internet
[32] https://vidmonsters.com/blog/direitos-autorais-no-youtube/
[33] https://cmsimpact.org/code/code-best-practices-fair-use-online-video/
[34] https://tecnoblog.net/303083/youtube-muda-regras-direitos-autorais/
[35] https://www.correio24horas.com.br/noticia/nid/youtube-anuncia-mudancas-na-monetizacao-e-na-producao-de-conteudo-infantil/
[36] https://support.google.com/youtube/answer/9528076
[37] https://www.YouTube .com/intl/pt-BR/about/copyright/fair-use/
[38] https://valorinveste.globo.com/objetivo/empreenda-se/noticia/2019/07/30/brasil-e-o-13o-maior-mercado-de-games-do-mundo-e-o-maior-da-america-latina.ghtml
[39] https://epocanegocios.globo.com/Empresa/noticia/2019/06/mercado-de-games-deve-gerar-receita-de-us-152-bilhoes-em-2019.html
[40] For further information, see: http://www.inpi.gov.br/servicos/perguntas-frequentes-paginas-internas/perguntas-frequentes-programa-de-computador#faq1.0
[41] https://www.metodista.br/revistas/revistas-unimep/index.php/cd/article/view/2901/1725
[42] http://www.gedai.com.br/wp-content/uploads/2019/06/045-O-FAIR-USE-E-A-REGULAMENTA%C3%87%C3%83O-DO-USO-DE-SAMPLES-E-COVERS-EM-OBRAS-MUSICAIS-NO-DIREITO-AUTORAL-BRASILEIRO.pdf
[43] https://www.migalhas.com.br/dePeso/16,MI204282,41046-Direito+autoral+nas+atividades+de+DJ+e+producao+de+musica+eletronica
[44] https://sambatech.com/blog/insights/direitos-autorais/
[45] http://www.gedai.com.br/wp-content/uploads/2019/06/045-O-FAIR-USE-E-A-REGULAMENTA%C3%87%C3%83O-DO-USO-DE-SAMPLES-E-COVERS-EM-OBRAS-MUSICAIS-NO-DIREITO-AUTORAL-BRASILEIRO.pdf
[46] http://www.ubc.org.br/Publicacoes/Noticias/13402
[47] https://www.facebook.com/help/225191540826940
[48] https://www.tjdft.jus.br/institucional/imprensa/campanhas-e-produtos/direito-facil/edicao-semanal/violacao-de-direito-autoral
[49] https://www.direitonet.com.br/artigos/exibir/1612/A-violacao-dos-Direitos-Autorais-na-internet
[50] https://www.fadiva.edu.br/documentos/jusfadiva/2011/19.pdf
[51] MORAES, Alexandre de. Brazil’s Constitution interpreted and constitutional legislation. 7th ed. Updated to EC no. 55/07. São Paulo: Atlas, 2007. p. 21
[52] Copyright Manual / Carolina Panzolini, Silvana Demartini. – Brasília: TCU, General Administration Department, 2017
[53] Leonardi, Marcel. Responsabilidade civil dos provedores de serviços de Internet. São Paulo: Editora Juarez de Oliveira, 2005, p.19.
[54] Leonardi, Marcel. Responsabilidade civil dos provedores de serviços de Internet. São Paulo: Editora Juarez de Oliveira, 2005, p.21.
[55] Leonardi, Marcel. Responsabilidade civil dos provedores de serviços de Internet. São Paulo: Editora Juarez de Oliveira, 2005, p.27 – 29.

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