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Copyright law of Brazil

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Photograph taken on 17 May 1888 depicting a mass celebrating the abolition of slavery in Brazil. The photograph is over 70 years old (counting from 1 January 1889), so it is in the public domain in Brazil.

The copyright law of Brazil is primarily based on Law Nº9,610 from 19 February 1998.[1] Additionally, Brazil has signed the Berne Convention and the TRIPS Agreement.

History

Imperial period

Brazil's first constitution, the Imperial Constitution of 1824, did not deal with creative works, and instead only mentioned patents:[2]

Os inventores terão a propriedade das suas descobertas, ou das suas producções. A Lei lhes assegurará um privilegio exclusivo temporario, ou lhes remunerará em resarcimento da perda, que hajam de soffrer pela vulgarisação.

Inventors will have ownership of their discoveries, or their productions. The Law will assure them an exclusive temporary privilege, or compensate them on losses they may suffer through dissemination.[a]

— Imperial Constitution 1824, Art. 179. XXVI

The first legal document to deal with the protection of creative works in Brazil was the Law of 11 August 1827, which gave jurist course professors exclusive publication rights to their course's compendia for the 10 years following their approval by the government.[3]

However, the general protection of creative works in Brazil first came from article 261 of the Criminal Code of 1830.[4] It protected any text ("or stamp") which had been written, composed or translated by Brazilian citizens, for the lifetime of the author, plus 10 years if they had any heirs. If such works were made by corporations, the protection lasted for 10 years after publication.[5]

While it was a step in the direction of an all-encompassing copyright protection, the Code of 1830 protected only written works, not any other kind of artwork. This and other issues would be criticized by scholars in the decades that followed its enactment.[6]

First Republic

Following the Proclamation of the Republic in 1889, copyright protections were expanded to encompass any type of artistic work – and no longer only literary works – in the Penal Code of 1890. The duration of copyright wasn't changed; it still lasted for the lifetime of the author, plus 10 years if they had any heirs.[7]

In 1891, copyright would finally become constitutional, in the first constitution of the Brazilian republic. That, in itself, was a landmark in terms of Brazilian copyright protections.[8] The law had a clear separation of patents and copyright, and delegated the duration of copyright to the Penal Code – as such, it remained as lifetime of the author, plus 10 years if there were heirs.

Aos autores de obras literárias e artísticas é garantido o direito exclusivo de reproduzi-las, pela imprensa ou por qualquer outro processo mecânico. Os herdeiros dos autores gozarão desse direito pelo tempo que a lei determinar.

To the authors of literary and artistic works is guaranteed the exclusive right to reproduce them, by press or any other mechanical process. Their heirs will enjoy that right for as long as the law determines.

— First Republic Constitution 1891, Art. 72 § 26

For works where the author is known, copyright lasts for the lifetime of the author plus 70 years, counting from 1 January of the subsequent year after their death.[9]

If the author is unknown or anonymous, any unpublished work is in the public domain.[10] For published works where the author is anonymous or a pseudonym, the publishing party retains copyright for 70 years after publication, again counting from 1 January of the subsequent year.[11][better source needed] If the author is found or discovered before the work's copyright expires, it reverts to being lifetime plus 70 years.

Audiovisual works (such as films) and photographs are protected for 70 years after their publication, counting from 1 January of the subsequent year.[12]

Apart from expired copyright and unknown authors, works in the public domain include those from authors who have died and left no successors.[13]

Limitations

However, copyright is not all-encompassing in Brazil – it has some limitations. The following are not considered copyright infringements:[14]

  • The reproduction of:
    • News or informative articles, in periodicals, as long as the name of the original author (if there is one) and of the original publication are mentioned;
    • Public speeches, in periodicals;
    • Portraits or any other form of image representation, made-to-order, when reproduced by the owner, given that there is no opposition by the person represented in them or by their heirs;
    • Literary, artistic or scientific works, for exclusive use by the visually impaired, as long as the reproduction is noncommercial and uses braille or other appropriated procedure;
  • The nonprofit reproduction, in a single exemplar of few excerpts, for private use by the copyist, if made by themself;
  • The quotation in books, newspapers, magazines or any other means of communication, of sections of any work, for the purpose of study, criticism or controversy, of a justifiable amount of content, indicating the name of the author and the source of the work;
  • The collection of lecture notes in an education institution by who they are directed to, barred their publication, in whole or in part, without authorization by the lecturer;
  • The use of literary, artistic or scientific works, audio recordings and radio or television transmissions in commercial establishments, exclusively for demonstration to clients, as long as these establishments commercialize support or equipments that allow for its use;
  • Theatrical representation and musical execution, when done at home or for exclusively didactic reasons in education establishments, given it is not-for-profit;
  • The use of literary, artistic or scientific works to produce judiciary or administrative evidence;
  • The reproduction, in any work, of small sections of existing works, of any nature, or of the full work, when dealing with plastic arts, whenever the reproduction itself is not the main purpose of the new work and that it does not harm the normal exploration of the reproduced work or cause unjustifiable loss to the interests of the original authors. This can be seen as a sort of fair use equivalent.

Paraphrasing and parodying are also allowed, given that they are neither faithful reproductions of the originating work, nor disparaging to it.[15] Additionally, Brazilian law has a freedom of panorama clause, concerning permanently displayed works in the public space. It allows for their reproduction through paintings, drawings, photographs and "audiovisual procedures".[16]

Fair dealing

Brazilian copyright law does not refer to its self-imposed limitations as "fair dealing" (or "fair use"), although some of them – such as the right to quote – could be considered as such. That said, the law has a specific clause preventing what is most commonly referred to, usually in online spaces, as "fair use":

Ninguém pode reproduzir obra que não pertença ao domínio público, a pretexto de anotá-la, comentá-la ou melhorá-la, sem permissão do autor. Os comentários ou anotações poderão ser publicados separadamente.

No one may reproduce any work that is not in the public domain, on the pretext of annotating, commentating or improving it, without permission from the author. The commentary or annotations may be published separately.

— Law 9.610 1998, Art. 33

Notes

  1. ^ "Dissemination" is an imperfect translation; the original text's intent is of patent infringement

References

  1. ^ Law 9.610 (1998).
  2. ^ Dal Pizzol (2018), p. 314.
  3. ^ Dal Pizzol (2018), pp. 314–315.
  4. ^ Dal Pizzol (2018), p. 316.
  5. ^ Código Criminal (1830), Art. 261.
  6. ^ Dal Pizzol (2018), p. 317.
  7. ^ Dal Pizzol (2018), p. 318.
  8. ^ Dal Pizzol (2018), pp. 318–319.
  9. ^ Law 9.610 (1998), Art. 41.
  10. ^ Law 9.610 (1998), Art. 45 (II).
  11. ^ Law 9.610 (1998), Art. 43.
  12. ^ Law 9.610 (1998), Art. 44.
  13. ^ Law 9.610 (1998), Art. 45 (I).
  14. ^ Law 9.610 (1998), Art. 46.
  15. ^ Law 9.610 (1998), Art. 47.
  16. ^ Law 9.610 (1998), Art. 48.

Bibliography

  • "Law No. 9.610 February 19, 1998, on Copyright and Neighboring Rights". WIPO. 2013. Retrieved 16 January 2022.
  • "Constituição Politica do Imperio do Brazil (de 25 de Março de 1824)" (in Brazilian Portuguese). 25 March 1824. Retrieved 19 January 2022.
  • "Codigo Criminal do Imperio do Brazil" [Criminal Code of the Empire of Brazil] (in Brazilian Portuguese). 16 December 1830. Retrieved 19 January 2022.
  • "Constituição da República dos Estados Unidos do Brasil (de 24 de Fevereiro de 1891)" (in Brazilian Portuguese). 24 February 1891. Retrieved 19 January 2022.
  • Dal Pizzol, Ricardo (21 December 2018). "Evolução histórica dos direitos autorais no Brasil". Trabalhos Acadêmicos de Pós-Graduação (in Brazilian Portuguese). 113: 309–330. doi:10.11606/issn.2318-8235.v113i0p309-330. S2CID 186643706. Retrieved 19 January 2022.{{cite journal}}: CS1 maint: ref duplicates default (link)


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