Copyrights in Brazil
New technologies make copyrights one of the most discussed subjects in the contemporary society. Learn in this article how Brazilian legislation deals with it.
Copyright is a subject that causes trouble all around the world. There are several cases of legal disputes involving the authorship of songs, books, articles, and with the modern technologies, the easiness to copy and share files using websites and other technological devices can make some authors go crazy.
The federation that takes care of the consumer's rights is Consumers International. It encompasses 220 entities of 115 countries, and every year it does a research to know how consumer's services are being treated in each one of these countries' legislations, as well as if they open the possibility of making consumers rights real.
According to this research, called IP Watchlist, Brazil has the 5th worst regime of copyrights in a list of 30 countries. Frequently in the lowest positions when the subject is ensuring consumer's rights, in 2011 the country stayed in the 4th position. IP Watchlist takes into account, among others, the access of the consumers to cultural services and products, the exceptions and limits for the educational use of works, the effective author protection and the adaptation of law considering the new digital models.
The fact that Brazil has risen one position doesn't mean that the legislation has improved. What happened was that Jordan was included in the list in 2012, and its evaluation was worst than Brazil's. Argentina had also a bad evaluation, and Chile improved its copyright system. The change in Brazil's position, was, therefore, a consequence of the ups and downs of other nations.
Copyrights were established in Brazil by the law 9.610 of the 1988 Constitution, and were set to protect literary, artistic and scientific works – in other words, to protect the expression of an idea, not the idea itself. According to this law, as soon as the work is finished, it is its author who has the right to use it. This right continues for the whole author's life plus 70 years counting from January 1st after his death; during this period, anyone who wants to use the work has to ask the author's permission. When this time is over, the work becomes available to everyone in the public domain.
Even though you instantly get a copyright as soon as you finish your work, it's advisable to have a document. Dated and printed articles, copies of your texts, records of your songs in more than one CD are some measures taken to protect your work. But sometimes more safety is needed, and authors can formally register their works at institutions such as the Fundação Biblioteca Nacional (the National Library Foundation) or the Escola Nacional de Belas Artes (the National School of Fine Arts). The institution vary according to the type of work that you want to register.
What Can Be Copyrighted?
Any expression of an idea can be copyrighted: works such as literary texts, their translations and adaptations, musical compositions (lyrics and melody), paintings, sculptures, choreographies, photographies, anthologies, computer programs and database, among others. These last two examples don't have a specific legislation, even though they are related to digital media. In fact, they were taken into account in the law 9.610 because of an international agreement named OMC/TRIP's, which was led by the United States, the country with the first company to produce paid computer programs.
Copyrights are a group of moral and patrimonial rights involved in the concept of a work. The moral rights are related to having the author's name in the work, refusing that the work is changed or suspending the use of the work if it's been harmful to the author. The moral right will always belong to the author of the work, and starts being valid from the moment the work is finished.
The patrimonial rights are the ones relates to the uses of the work. They can be transferred from the author to another person, called holder, by a contract. This cession of the work is valid for the maximum period of 5 years; after this time, the patrimonial right will return to the author of the work.
The Fair Use Doctrine
In the fair use doctrine, it is possible to use and share the work of others without plagiarizing them. This happens when the distribution of the material has one of the following purposes:
I. Criticism, comment, education, teaching, research, exclusive use of blind and visually impaired people in the Braille system or any other system to support them, work preservation or study or even demonstration to clients in a commercial establishment, as long as this place commercializes the equipments that allow its use
II. It is not destined to be essentially commercialized by the addressee of the reproduction and by who distributes and uses the intellectual works
III. The effect of the work in the market is not appreciable individually, causing no damage when there is usual exploration of the work.
A derivative work is the primary work with a modification, an adaptation or any kind of alteration that gives the original work new functions or characteristics. It can also be a new work that was done based on another one, which means that there are parts of the original work in the new work.
In Brazil, it is possible to make a derivative work as longs as its main purpose is not reproducing the original work, and as well as it doesn't cause damage to the interests of its author(s). To make a derivative work, it is necessary to ask for the author's permission.