A reply to Inside Views: Brazil’s Copyright Reform: Schizophrenia?

This is my reply to a recent article by Pedro Paranaguá at Intellectual Property Watch.

The original article from Pedro Paranaguá criticizes a recent decision from the new Ministry of Culture Ana de Hollanda to remove the Creative Commons license from the Ministry´s website and argues in favor of a proposal to reform the current Brazilian Copyright law which the Ministry has decided was not yet ready to be presented to the national congress.

Dear Pedro,

The Ministry was very prudent and did the right thing in not going further with a copyright revision which was badly drafted and conceived.

Many organizations of content creators and right holders showed their concerns and the bill was clearly not ready to move forward.

It is easy to promulgate populist concepts of free access but much more difficult to create a work.
The Government should not try to cover his fault of years of lack of investment in education by blaming creators and forcing compulsory licenses on them.

Access to culture is a fine point but we should protect the ones who make and also the ones who invest in making culture available in the first place.

The mere fact that the Internet allows distribution of works is not reason enough to disregard the need of prior authorization. The Internet also allows the hacking of bank accounts and this is not sufficient to make it legal.

On the contrary, the digital environment is a huge opportunity for authors and right holders but, among other conditions, the potential will only be realized if we have a law that curtails the widespread distribution of unauthorized content and allows the control and exploitation of copyright works.

For me, the technical opportunities presented by the digital arena which allow the licensing of works in pay per view and diverse others schemes of remuneration giving users the possibility to accessing only individual works or a whole library in subscription formats is more than sufficient to justify strong copyright laws to enforce them.

As brilliantly advocated by Sam Ricketson and Jane Ginsburg on the seminal book International Copyright and Neighboring rights while analyzing the progress of technology and private copying with focus on the Bern Convention and the European Directive (International Copyright and Neighboring Rights – The Berne Convention and Beyond, Ed. Oxford. Second Edition 2006, items 13.33, pgs 779, 783 ):

“By its very nature, ‘private use’ would appear to be confined to the making of single copies, and the basis for it a kind of de minimis argument, coupled with an acknowledgement that author’s right should not impinge upon what is done in the purely private sphere. Nevertheless, at the time private use was being discussed in the preparations for , and the deliberations of, the Stockholm Conference, the techniques for private copying were far more rudimentary than they are today. Essentially, private use exceptions in national laws at that time were predicated upon the basis that those copies were made by hand or with the use of a typewriter, and that the quantity of such copying could scarcely conflict with either the normal exploitation of the work or the legitimate interests of the author.

With the development of reprographic reproduction, audio and video recording, and digital copying the scope of what may be copied privately has now expanded beyond recognition.

Reproduction, by such means will usually lie outside the scope of article 9(2): as the normal way for a copyright owner to exploit his work is by licensing others to make reproduction of it.

As a starting point, it should be noted that the consistency of private copying with the second step of 9(2) is not immediately apparent, in that making a copy by a private user that substitutes for a paid copy certainly looks like a conflict with a normal exploitation. If this nonetheless pass the second step, as under the present EU provision, this will be because of such matters as the empirical consideration of practical enforceability, as well as the non-economic normative consideration of privacy. But if transaction costs can be reduced in the future, for example, through improved technological measures that facilitate private licensing, the non-economic, normative consideration of privacy would then become the only operative factor in relation to the second step. Should this continue to govern the question of whether there is compliance with that step? Bear in mind that presently compensation is required under the third step., where the justification is both transactional costs (enforceability) and privacy. But if the primary justification becomes privacy alone, it would then be anomalous for member states to continue to impose compulsory licenses, in circumstances where technology now makes license possible. In other words, the second step would no longer be satisfied, unless the member states in question where to advance the bold argument that privacy considerations in themselves are sufficient to take such usages outside the scope of normal exploitation.”

Other countries are already moving in this direction and Brazil should not follow a populist agenda.

Rodrigo Borges Carneiro

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Filed under Brazilian Copyright Act, Copyright in Brazil, Copyright Law, Entertainment Law Brazil

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