My last post was about a new bill that wants to profoundly change the Brazilian Copyright Act (to the worse, in my view). However, I found that a less ambitious – but still very troubling – bill was introduced last December 13th by Congressman Luciano Castro of the Republic Party of the State of Roraima (Northern Region of Brazil) which aims to limit the term of assignment of rights in copyright-related contracts. The bill received number 2910/2011 and, on January 31st, 2012, it was sent to the Committees of (i) Education and Culture, (ii) Constitution and Justice and (iii) Citizenry for approval. If approved, the bill will continue its path through Congress.
Currently, the Copyright Act does not provide for any limitation on the term of assignments and licenses. Section 49 of the Act determines that assignment can only take place in writing and that a total, unrestricted transfer is possible, with the obvious exceptions of the moral rights of the authors. The same Section further determines that, in the absence of a written contractual provision, the maximum term of the assignment will be deemed to be of 5 years.
The recently introduced bill wants to expand the 5-year term limitation to all assignments. It allows for the renewal of the 5-year term, but only after a new negotiation so that automatic renewals for further and consecutive terms of 5 years would not, in principle, be possible. A rough translation of the proposed changes in Section 49 is as follows:
II – the full assignment of rights will only be allowed upon written contractual stipulation with a maximum term of five years;
III – the full assignment of rights may be renewed, at the end of five years, upon new negotiation;
But the bill does not stop there.
It further determines that assignments of copyrights without the presence of an attorney will be null and void. Each contracting party must be represented by its own attorney and, in the lack of one, by a Public Defender. Though I really like this idea – after all, I am an attorney! – I wonder how this could be achieved on an everyday basis. An attorney serving almost as a witness? And just to prove that the weakest party has not been duped? And what if we are talking about two very powerful contracting parties, both of them more than used to negotiating their respective deals? The need to overprotect that the Brazilian legislation has embedded in its soul is, more often than not, extremely burdensome and not practical at all.
It is interesting to notice that the justification behind this bill clearly affirms that “in view of the problems that afflict the authors in the Brazilian literary publishing market, the intention of the bill (…) is to reduce the imbalance in the assignment of rights and provide greater protection to the weakest party, the author”. So, the reason to limit all assignments in the copyright world is because of the literary publishing industry? Why not tackle these supposed and non-specified “problems” directly, with a narrowly tailored piece of legislation? Also, why is the author the weakest party by definition? What if we are talking about Paulo Coelho, the best-selling Brazilian novelist, who had his books published all over the world? Is he really the weakest party only because he is the author?
I know: questions, questions, questions. But questions must be asked when bills like this surface out of thin air.
Well, this is all for this week.