According to the Ministry of Justice’s website, the so called Civil Regulatory Mark for the Internet in Brazil was sent to Congress yesterday. The Internet Bill received number 2,126/11 and it is currently following the procedures of the House of Representatives and, then, it will be remitted to the Senate. It is unclear how long the process may take but now is the moment for content creators and owners to pay close attention as the Congress may amend the current text of the bill before sending it to the presidential sanction.
The Internet Bill started to be elaborated in 2009 when the Ministry of Justice disclosed its first draft allowing time for the interested parties to make the pertinent comments. However, even though such draft seemed to be an improvement over the current legislation, we have strong reasons to believe that the Internet Bill which has just arrived at Ccongress is practically useless for content creators and owners or, at least from the Intellectual Property standpoint, nothing has really changed in comparison to the current legislation and practice.
We say this for three basic reasons (there are more but we think that these three aspects speak for themselves):
- First, the Internet Bill, in its very beginning (Articles 2, 3 ad 4), contain a list of the fundaments, principles and targets, respectively, for the Internet use in Brazil. None of these fundaments, , principles and targets – absolutely none – is related to the protection and respect of Intellectual Property. Among the fundaments, principles and targets, the bill mention access to the Internet and information and protection of privacy and personal data the reasons, but there is no reference to the importance of the preservation and protection of IP rights. This is even stranger when we take into consideration that another objective is to “promote the innovation and stimulate the dissemination of new technologies and models for use and access”. How can one intend to promote innovation without protecting IP rights?
- Second, the only remedy available in the Internet Bill to remove infringing content from the Internet is the filing of a court action. How is this a change or progress exactly? Not only the filing of court actions is more expensive and slower than an out-of-court notice and takedown procedure but also the current Brazilian legislation already allows that. Why do we need a new piece of legislation allowing content owners to do what is already allowed? In addition, the jurisprudence is plentiful regarding this possibility so that the Internet Bill aims to poorly regulate what we already have.
- Finally, for some reason we really ignore, the Internet Bill forces the internet service providers to keep records, for one year at most, of what they call “connection records”. The connection records consist basically on information about the length of time which the user remains connected to the internet. This is borderline useless. On the other hand, as to “access records”, defined as the data or content accessed by the users, information that is really valuable to determine infringement, the Bill simply prohibits the internet service providers to keep records of them. This means that, even with a court order in hand, content owners will not be able to enforce it because the valuable piece of information will not be available.
Our hope is that the Congress will notice how backwards the Internet Bill is and will improve it drastically.
That’s all for today. Stay tuned.