COPYRIGHT IN BRAZIL

A. – BRAZILIAN LEGAL REGIME

A.1. – Brief legislation history

The first record of protecting the interests of the author date back to 1827 with the Imperial Law which created the first law schools in the country and conceded “exclusive privilege” (during ten years) to the professors who wrote the adaptations of textbooks. Soon after, in 1830, and a first for Latin America, the violation of the author’s right was treated in Brazil as a crime. In the constitutional arena, the author’s right was only regulated in the beginning of the republican period with the Carta Constitucional of 1891.

A.2 – The legal regime

The Brazilian legal regime is based on the constitutional principal that the author is the exclusive owner of his work.

The existing federal law is # 9610 of 1998 (which replaced the previous of 1973), while that in relation to computer programmes is law # 9609, passed on the same date.

A.3 – Principal characteristics of the legal regime

A.3.1. – The inexistence of state interference The right of the author in Brazil belongs exclusively to the private sector

controlled by private individuals, companies, or collectives.

The body, linked to the then Ministry of Education and Culture, denominated the National Committee of Author’s Rights – CNDA, created in 1973 an installed in 1976, operated during 14 year, being deactivated when the ministry of culture was extinct in 1990 an incentive of the newly elected President Fernando Collor de Mello.

Since 1990 there has been no state body to look after the norms and fiscal aspects of copyright. The only activity is that of the police repression in the case of crimes against intellectual property and obviously that of the legal system.

A.3.2 – Copyright

a) The works protected: right of the authorEstablished by law # 9610/98, intellectual works are “protected as creations of the

spirit, expressed by any means or fixed in any support, tangible or in tangible, now known or to be invented in the future...” It also related other protected works, including:

– the texts of literary, artistic and scientific works;

– dramatic or musical-dramatic works;

– choreography and pantomime whose performance are fixed in a written or in any other form;

– musical compositions, with and without lyrics;

– audiovisual works, with and without soundtracks;

– adaptations, translations and other transformations of original works, presented as new intellectual creations; and

– collections or compilations, anthologies, encyclopedias, dictionaries, banks of information and other works which because of their selection, organization or content constitute an intellectual creation.

The protection of an intellectual work includes its title, if original and unmistakable with the work in the same genre as that of another author, explicit in Law 9610 the following are not covered:

I – the ideas, normative procedures, systems, methods, projects or mathematical concepts as such;

II – schemes, plans or rules for carrying out mental acts, games or business;

III – blank forms to be filled out with any type of information, scientific or not, and their instructions;

IV – texts of agreements or treaties, laws, decrees, regulations, legal decisions and other official acts;

V – information of everyday use such as calendars, diaries, reference files or subtitles;

VI – names and titles;

VII – industrial or commercial utilization of ideas contained in the works.

b) Other protected rights: Connected rightsThe properties protected in the field of connected rights are:

– interpretation and artistic performance (including musical);

– radio broadcasts;

– the phonogram – all the fixation of sounds of a performance or interpretation or of other sounds, or of the representation of sounds which is not a fixation included in an audio-visual work.

c) Rights and ownershipThe Brazilian legal system establishes that the author is the individual who

creates literary, artistic or scientific work, but that the protection given to the author may be given to legal entities in the cases foreseen in this Law.

Excluding the moral rights of the author (which are inalienable and cannot be renounced), the patrimonial rights of the author can be owned by companies.

The only companies who can, under Brazilian law, be the original copyright owners are the record producers and radio stations.

In the area of music, the owners of the author’s rights and connected rights are the following:

– the composer and the lyricist, who usually pass the administration of their rights to a music publisher;

– the arranger, who usually passes his rights to the record company;

– the interpreter, whose rights usually belong to the record company.

A.4 – Use of intellectual works

Article 29 of Law 9610/98, establishes that the prior authorization of the author (or anyone controlling his rights) is needed for the usage of an intellectual work:

I – its partial or total reproduction;

II – the edition;

III – adaptation, the musical arrangement and any other transformations;

IV – the translation to any other language;

V – the inclusion in a phonogram or any audiovisual production;

VI – the distribution, when not inherent to the contract signed by the author with third parties for the use and exploration of the work;

VII – the distribution for offering of works or productions by means of cable, optical fiber, satellite, waves or any other system that allows the user to make the selection of the work or production to receive it at a time and place previously determined by the person who formulates the demand, and in the cases where the access to the works or production is done by any system that means payment done by the user;

VIII – the direct or indirect use of the literary, artistic or scientific work, by means of:

a) representation, recitation or declamation;

b) musical execution;

c) use of loudspeakers or similar systems;

d) radio or television broadcasting;

e) reception of transmission of radio broadcasting in places of collective attendance;

f) background music;

g) audio-visual, cinematographic display or by any similar process;

h) use of artificial satellites;

i) use of optical systems, telephone wires or not, cables of any kind and similar means of communication that may be adopted;

j) exhibition of works of art;

IX – the inclusion in database, the storage in computer, microfilming and the other forms of filing;

X – any other existing forms of use or that may be invented.

B.– SELLING CDS AND DVDS: RULES, FIGURES AND PROBLEMS

The selling of CDs and DVDs is normally carried out by the record companies who pay a mechanical royalty of 9,17% of the selling price to the music publishers who, usually, keep 25% and give 75% to the composers.

The minimum price for a CD is R$11.70 (US$4.10) and for DVD is R$15.00 (US$5.26). However, for each CD or musical DVD, the minimum amount to be paid to the publishers is R$1.078 (US$0.378) for CDs and R$1.375 (US$ 0.482) for DVD, divided by the number of tracks (a maximum of 14 for CD and 20 for DVD).

These conditions are spelled out in agreements made between the two national associations of music publishers (The Brazilian Association of Music Publishers – ABEM, and the Brazilian Association of Re-United Publishers – ABER) and the Brazilian Association of Record Producers – ABPD.

In sales terms the quantity sold has remained relatively stable between 1997 and 2000 – about 100 million units or US$410 million per year. In 2001 the amount was US$423.5 million, falling to US$354 million in 2002. The ABPD hasn’t yet supplied the figures for 2003. Of this amount, 80% corresponds to Brazilian music and 20% to international music (2001 figures) -:

– 34% is generated from specialized stores;

– 24% one-stops;

– 20% supermarket chains;

– 17% to supermarkets;

– 5% other outlets.

The industry has suffered a loss of 53% in sales due to piracy. According to the ABPD, Brazil is third in the world ranking for piracy. The Associação Protetora dos Direitos Intelectuais Fonográficos – APDIF – is active in the fight against this activity.

C.– THE COLLECTION AND PAYMENT OF RIGHTS FROM PUBLIC PERFORMANCE

C.1 – A brief history

The first society was established in 1917 to act specifically with regard to theatres - Sociedade Brasileira de Autores Teatrais – SBAT, followed in 1938 by the Associação Brasileira de Compositores e Editores – ABCA, and the União Brasileira de Compositores – UBC – in 1942.

Because of a dispute between composers and publishers the Sociedade Brasileira de Autores, Compositores e Editores de Música – SBACEM was set up in 1946. Ten years later saw the founding of the Sociedade Arrecadadora de Direitos de Execução Musical no Brasil – SADEMBRA. In 1960 SICAM (Sociedade Independente de Compositores e Autores Musicais) was created in São Paulo.

This proliferation of societies has caused a certain disorganization throughout the panorama of Brazilian copyright – both for the owners and the users. In 1966 SBAT, UBC, SADEMBRA and SBACEM created the Serviço de Defesa do Direito Autoral (SDDA), a central body to control distribution for these four societies. SICAM refused to participate.

In 1967 the Sociedade de Intérpretes e Produtores de Fonograma (SOCINPRO) was set up to include the rights of the record companies and producers.

C.2 – The Central Collection and Distribution Office – ECAD

ECAD was created in 1973 by law # 5988 as a type of “association of associations,” which united all of the societies under this private enterprise to collect and distribute public performance royalties.

It began its activities in 1977 and today represents 13 societies (ABRAC, ABRAMUS, ACIMBRA, AMAR, ANACIM, ASSIM, ATIDA, SABEM, SABEMBRA, SBACEM, SICAM, SOCINPRO e UBC). The top six are UBC, ABRAMUS, AMAR, SOCINPRO, SICAM and SBACEM. All the societies basically distribute to their members (and to foreign societies) the amounts gathered for them by ECAD – or sent to them by foreign societies.

C.3 – Collection of Revenue

C.3.1 – General Rules1) The user is any individual or company who uses music through public

broadcast;

2) The amounts fixed on ECAD´s pricelist correspond to the different types of user and usage.

C.3.2 – Revenue (1997 to 2003)The amount of money collected by ECAD (25% is kept by ECAD/Societies and

75% is passed on to the copyright owners) has increased significantly in recent times.:

between 1997 and 2000

– 1997: R$ 80.130.065,00

– 1998: R$ 89.896.295,00

– 1999: R$ 91.477.719,00

– 2000: R$ 112.521.118,00 (US$ 61.496.259,00)

over the last 3 years

– 2001: R$ 156.830.826,00 (US$ 65.964.488,00)

– 2002: R$ 176.537.932,95

– 2003: R$ 200.000.000,00 (US$ 70.175.000,38), with the dollar at R$ 2,85,

José Carlos Costa Netto

A lawyer specialized in copyright with a doctorate from USP (University of São Paulo) in civil rights; president, from 1979 to 1983, of the National Commission of

Copyright; and author of the book Direito Autoral no Brasil. He’s the principal partner in the law firm of Costa Netto Advocacia, based in São Paulo.