The fact that on this occasion it's not Google trying to bolster moves to make the laws governing the Internet more balanced is important. That means the law's opponents won't be able to paint the Marco Civil bill as something largely for the benefit of Google, as has happened elsewhere. Let's hope that Yahoo! continues speaking out on the issues of net neutrality, privacy and maybe copyright modernization: that would be good for burnishing the company's image, and good for Internet users.

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An interesting question is whether the Pirate Party is a one-off, or part of a larger movement away from traditional party lines towards a different kind of politics -- specifically one that recognizes the central importance of the Internet in modern life. That's just been answered by the appearance of a new party in Brazil, as reported by Global Voices:

A former Brazilian presidential candidate and famous environmentalist is leading the charge for the creation of a new political party in the country, one that seeks to use the Internet as a tool for action on sustainability issues.

Former Brazilian Environment Minister Marina Silva officially launched her Sustainability Network in the capital Brasilia on 16 February, 2013, to a crowd of around 1,700 people, including supporters, founders and ideologues. The network aims to collect the required 500,000 signatures by September 2013 to become legally recognised as a political party.

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Yesterday, Reuters news service ran an article about a rating of eleven countries based on their enforcement of intellectual property rights. The index was prepared at the behest of the U.S. Chamber of Commerce by a group called The Global Intellectual Property Center, and it ranks the U.S. at the top of the list in terms of strong IP protection (23.73 points on a scale from 0 – 25). But what is interesting is who scored lowest (out of the eleven countries that were ranked). The four “worst” countries for providing the strong IP protection important to the Chamber of Commerce were the four countries known as BRIC — Brazil, India, Russia and China.

So what else do we know about these four nations? In fact, why were they originally grouped together under the acronym BRIC? The answer is that the term was coined because these four countries were the fastest growing emerging economies, showing growth rates between 5 and 9 percent in their gross domestic products (compared with US growth averaging 3.2 over the past 65 years). The source of these averages for the BRIC nations is this report from PriceWaterhouseCoopers, dated February 2012, which contains this conclusion: “We expect the BRIC economies to continue to drive world economic growth in 2012.”

So the four countries driving economic growth are also the four countries with the weakest IP protection regimes, amongst those 11 rated by the Chamber of Commerce report. Doesn’t the conclusion seem simple, that weaker IP enforcement is part of the picture for economic growth?

[I]P protection is, at least a double edged sword. Piracy can reduce revenues, but it also helps to create distribution channels and grow markets. So creative industries seeking to grow in the digital economy need to do more than try, futilely, to eradicate piracy, they need to seek ways to shape their markets and their marketing to exploit the audiences that it can create.

So, slippery as such conclusions can be, I feel comfortable with these two assertions. First, creative people and creative industries can thrive without strong IP protections. In fact, if you are continually looking to the government to increase IP enforcement on your behalf, your industry is probably already in bad trouble. Second, it is perfectly possible to over-enforce IP rights to the point where creativity and economic growth are stifled. There is good evidence that the US has passed that point, and the example of the BRIC nations should suggest to us that we need to reverse our course.

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Most of it has, remarkably, but a recent addition to one clause basically guts protection for ISPs and other online intermediaries. The EFF has a good explanation of the situation:

A concerning last-minute change has chipped away at the Bill's safe harbor provisions regarding copyright infringement. Article 15 of Marco Civil originally provided that ISPs are not responsible for infringing content by Third Parties unless they disobey a specific judicial order to take down said content. However, following a visit by the Minister of Culture to the legislator serving as rapporteur of Marco Civil, the rapporteur introduced a new paragraph into Article 15, saying that the article would not apply in cases of "copyright and neighborhood rights".

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it would be absurd for a restaurant to tax a cab driver for taking tourists to eat there.

Now, in something of a shock move, de Hollanda has been dismissed according to this report by infojustice.org:

Ana de Hollanda has been on shaky grounds since she appointed. Her first words were to say she would review the Copyright Law Reform in order to "protect the author" from what she saw as an attack on their rights and its exercise. By that she meant the expansion of the limitations, the supervision of the Collective Management Organization and the institutionalization of the equivalent to a Copyright Office with consulting, mediation and possibly arbitration powers.

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A recent news story in Nature sketches the twists and turns of that fascinating tale. For example, how the growing of GM soybeans was only legalized in 2005 when it turned out that three-quarters of the crops growing in the southern state of Rio Grande do Sul were already using Monsanto's GM soybeans. Apparently, these had been smuggled in from Argentina. Monsanto claims that many soybeans still are, and uses this as a justification to impose an unusual levy on Brazilian soybean farmers:

Since the legalization, Monsanto has charged Brazilian farmers 2% of their sales of Roundup Ready soya beans, which now account for an estimated 85% of the nation’s soya-bean crop. The company also tests Brazilian soya beans that are sold as non-GM -- if they turn out to be Roundup Ready, the company charges the farmers responsible for the crops some 3% of their sales.

Brazil is now the world's second-largest producer of GM crops (after the US), and most of them are soybeans, so this levy resulted in huge additional profits for the company down the years -- and much resentment from the farmers. This led to a legal challenge being mounted in 2009 by a consortium of farming syndicates in the Rio Grande do Sul state. Earlier this year, this was successful, not least because the key patents had expired:

Giovanni Conti, a judge in Rio Grande do Sul, decided that Monsanto's levy was illegal, noting that the patents relating to Roundup Ready soya beans have already expired in Brazil. He ordered Monsanto to stop collecting royalties, and return those collected since 2004 -- or pay back a minimum of US$2 billion.

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We noticed that government agencies from different countries would sometimes ask us to remove political content that our users had posted on our services. We hoped this was an aberration. But now we know it’s not.

This is the fifth data set that we’ve released. And just like every other time before, we’ve been asked to take down political speech. It’s alarming not only because free expression is at risk, but because some of these requests come from countries you might not suspect—Western democracies not typically associated with censorship.

For example, in the second half of last year, Spanish regulators asked us to remove 270 search results that linked to blogs and articles in newspapers referencing individuals and public figures, including mayors and public prosecutors. In Poland, we received a request from a public institution to remove links to a site that criticized it. We didn’t comply with either of these requests.

Brazil: In December, we received an electoral court order that resulted in the removal of four orkut profiles for content related to political campaigns.

Canada: We received a request from the Passport Canada office to remove a YouTube video of a Canadian citizen urinating on his passport and flushing it down the toilet. We did not comply with this request.

Pakistan: We received a request from the Government of Pakistan's Ministry of Information Technology to remove six YouTube videos that satirized the Pakistan Army and senior politicians. We did not comply with this request.

Poland: We received a request from the Polish Agency for Enterprise Development to remove a search result that criticized the agency as well as eight more that linked to it. We did not comply with this request.

Spain: We received 14 requests from the Spanish Data Protection Authority to remove 270 search results that linked to blogs and sites referencing individuals and public figures. The Spanish Data Protection Authority also ordered the removal of three blogs published on Blogger and three videos hosted on YouTube. We did not comply with these requests.

United States: We received a request from a local law enforcement agency to remove a blog because of a post that allegedly defamed a law enforcement official in a personal capacity. We did not comply with this request, which we have categorized in this Report as a defamation request.

We received a request from a local law enforcement agency to remove 1,400 YouTube videos for alleged harassment. We did not comply with this request. Separately, we received a request from a different local law enforcement agency to remove five user accounts that allegedly contained threatening and/or harassing content. We terminated four of the accounts, which resulted in the removal of approximately 300 videos, but did not remove the remaining account with 54 videos.

We received a court order to remove 218 search results that linked to allegedly defamatory websites. We removed 25% of the results cited in the request.

As the Reuters article quoted above explains, China has prepared this move carefully, consulting with other countries that have taken this route in order to prevent it being challenged in international forums like the WTO. It is yet another example of China moving up the production chain:

China's stable of generic drug makers has been producing the key ingredients -- or active pharmaceutical ingredients (APIs) -- in medicines for years, exporting them to foreign drug makers, which then sell the patented finished products back to China at prices which the average Chinese citizen often cannot afford.

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Lack of constitutionality had been raised back in 2008 because of the way that pipeline patents diminished the public domain:

"The concession of pipeline patents also violates the acquired right of the collectivity by removing from the public domain knowledge belonging to everyone, which once again goes against society’s interest," said Renata Reis, an attorney at the non-governmental Brazilian Interdisciplinary AIDS Organization.

Taken together with the Indian decision, this latest ruling emphasizes the increasingly important role of generics in global healthcare. That's another reason why both ACTA and the Trans-Pacific Partnership agreement are problematic.

ACTA, for example, allows generics to be seized in transit on the basis of complaints about names that are "confusingly similar" to a brand-name drug. TPP, meanwhile, would bring in a range of measures to make it substantially harder for companies to produce generic versions of patented drugs in signatory nations. The divergence between what the BRICS countries are doing in this area, and what plurilateral treaties like ACTA and TPP seek to mandate, is another reason why it is unlikely the former will ever sign up to the latter.

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How quickly things change, especially for entities who find themselves staring down an angry internet. At first, ECAD seemed disturbingly untroubled by the uproar, including the memeification of its intention to stretch the definition of "public performance" to include all audible sound. But it suddenly changed its prohibitively expensive tune when hundreds of thousands of dollars were at stake.

None other than Google Brazil itself issued a blog post stating that ECAD's existing agreement with Youtube did not allow the agency to collect fees from bloggers, pointing out the obvious to ECAD's wilfully obtuse representatives:

These sites don't host or transmit any content when they associate a YouTube video to their site, and as such, the fact of embedding videos from YouTube can't be treated as a ‘retransmission'. As these sites aren't performing any music, ECAD can't, within the law, collect any payment from these.

1- Ecad has never had the intention to curtail the freedom on the internet, known to be a space devoted to information, dissemination of music and other creative works, and propagation of ideas. The institution also lacks a copyright billing strategy geared to embedded videos. Royalties collections for webcasting have been under re-evaluation since February 29th, and the case reported in recent days took place before then. Nevertheless, it resulted from an operational error of interpretation, which represents an isolated fact in this segment. (...)

2- Two years ago, Ecad and Google signed a letter of intent that guides the relationship between both organizations. The document details thatEcad can collect copyright fees for music coming from embedded videos, as long as it gives advance notice to Google/YouTube. As Ecad did not send such a notification, it becomes clear that this is not its goal. If it were the case, it would have sent the notification the letter of intent requires. (...)

The saga of unusual collections of the Central Office of Collection and Distribution (ECAD) has added another chapter last week. The boys from the blog Caligraffiti received last Tuesday in an email warning that the collecting society would have to pay royalties for videos from YouTube and Vimeo that appeared on the site.

The saga of unusual collections from the Central Office of Collection and Distribution (ECAD) gained another chapter last week. The boys from the blog Caligraffiti received last Tuesday an email from the collecting society warning that they would have to pay royalties for videos from YouTube and Vimeo embedded on the site.

YouTube Brasil will have to pay 2.5% of its gross revenue per exhibition of songs protected by Ecad (Bureau of Revenue Distribution) in the country. If the amount of the stipulated percentage does not reach BRL 258,000 (US $146,250) in a year, the site must pay the value as "minimum annual fee".

The right of public performance in digital mode is through the concept of transmission exists in law and in this art. 5 of section II of Law 9.610/98, which issue is the transmission or dissemination of sounds or sounds and images through of radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

The rights of public performance in digital media happen through the concept of transmission found in the article 5, section II of the law 9.610/98, in wich transmission or emission are the diffusion of sounds or images through radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

To blog [as] a nonprofit, the amount charged by Ecad is nothing lightweight: R $ 352.59 (US $204) monthly.

 

Eduardo has also confirmed that ECAD has gone after weddings with DJs for performance royalties (as Ninja pointed out in the comments) and pointed out that the BRL $359 amounts to roughly half a month's wages at minimum wage.

The registration and use of this domain name may lead users to believe that Brazil is a tourist attraction and pole of sexual activities, which interferes on the position and image of the country.

Moreover, websites with pornographic contents on the Internet that makes direct and/or indirectly mention to the characteristics related with the Brazilian identity, such as colors of the flag, culture pictures and images of cities, sets as a crime, punishable by the Brazilian Penal Code, Federal Law n. 9.279/1996:

Through this letter, the Ministry of Tourism of Brazil requests that you provide a written assurance within the next seven (7) days that you will:

1. Immediately discontinue any and all use of the domain(s)

2. Immediately and permanently refrain from any use of the term that associates Brazil to the pornography on the Internet;

3. Remove any and all pornographic content or dissociate it with the Brazilian Identity or Brazil.

For example, FIFA, the world governing body for soccer/football, uses its monopoly on organizing the World Cup to demand some rather extraordinary privileges. Here are just some of the things the UK government was prepared to accept as part of its bid to host the 2018 World Cup:

The U.K. said it would meet FIFA’s requirements to create a 2-kilometer perimeter around stadiums, and said the right to conduct commercial activities there was subject to the approval of FIFA or its appointees. The government also agreed to suspend some labor laws that affected FIFA’s activities and to lift restrictions on the import and export of foreign currency.

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• It's intriguingly difficult for any country that currently uses the euro to try to stop using it and switch to some other form of currency. So difficult, in fact, there's a $400,000 prize for anyone who can figure out a process that would actually work and not create monetary chaos. [url]
• Some Brazilians are using locally-printed currencies instead of its national reais -- such as the capivari, which is just one of the 63 local kinds of money. The capivari is a printed bill (with a picture of a rodent on it!), equal in value to the reai, but retailers give customers discounts for using capivaris (making these local bills into fancy coupons, essentially). [url]
• Last year, the IMF's Dominique Strauss-Kahn proposed an alternative to the dollar in central banks' foreign currency reserves. A system of special drawing rights (SDRs) for central banks would be priced according to international trade instead of any single nation's currency. (It's not an entirely new idea, but it's never caught on.) [url]
• In Vietnam, there's a penalty for posting prices in dollars instead of the local currency. The local currency suffers from high inflation rates, so they might want to look into Brazil's monetary history for some lessons.... [url]
• To discover more stuff on economics, check out what's currently floating around the StumbleUpon universe. [url]  

Where former President Lula and his Minister for Culture, the musician Gilberto Gil, embraced Creative Commons licensing, Ana de Hollanda, the new minister appointed by Dilma Rousseff, Lula's successor, ordered the CC license to be removed from the Ministry of Culture's website. That and other hints seemed to signal a major retreat from Brazil's position as a leader in recasting copyright for the modern world.

The intentions of the new Brazilian government have become a little clearer with the leak of the third version of the draft bill. What emerges from this thorough analysis of the document by Pedro Paranaguá is that it's a mixed bag.

On the plus side, Paranaguá identifies things like first-sale rights; the ability to put works into the public domain; compulsory licenses for orphan works; and a good range of exceptions and limitations to copyright:

i) space-shifting and interoperability
ii) reproduction, translation, adaptation, distribution, communication, and making available exclusively for persons with impairment
iii) private copying
iv) incidental use (background use, mashups, and so on)
v) citation for criticism and study
vi) certain uses for rehabilitation or therapy purposes
vii) musical public performances within religious activities
viii) public performance within film-society associations
ix) reproduction, translation and distribution for educational purposes
x) reproduction for conservation and archival purposes
xi) communication and making available within libraries
xii) public display of broadcasts and public performance of sound recordings by liberal professionals and micro-companies

Although that would seem to mean that people would be permitted to circumvent DRM in order to access works in the public domain, or to enjoy the exceptions and limitations to copyright, it's quite likely that most non-technical members of the public (a) won't know how to do that and (b) wouldn't do it even if they did from a mistaken belief that the presence of DRM is an indication that it would be illegal (as is the case for uses outside the exceptions and limitations.)

Another regrettable aspect is that the ideas proposed in Brazil's "Marco Civil" – the innovative civil rights-based framework for the Internet discussed in Techdirt a few weeks back – have not been adopted in the draft Bill:

The Ministry of Culture further rejects the approach taken under the called “Marco Civil da Internet” or civil rights framework for the internet, which is a bill presented to the Brazilian Congress that has been built collaboratively with society, and that states the principles underlying the Internet in the country. Under the “Marco Civil” provisions, content may be taken down if, and only after, a court order is granted.

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The Assembly of the International Broadcasting Association today approved a resolution tabled by the Brazilian Radio and Television Association (BRTA) asking the Brazilian authorities to regulate the production and distribution of media content entering the country via the Net.

The BRTA accuses foreign groups of producing journalistic content and entertainment, violating Article 222 of the Federal Constitution, which limits foreign ownership of media companies and broadcasters to 30%.

According to the resolution the failure of the regulatory framework represents a "grave violation of Brazilian sovereignty."

Much of the challenge to the old order is coming from the BRICS group of emerging countries – Brazil, Russia, India, China and South Africa – none of which has been involved in ACTA. Of those, the one in the vanguard of adopting innovative approaches to making knowledge widely accessible in the Internet age is Brazil.

For example, the federal government has actively supported open source software by creating a Public Software Portal. The country has also been at the forefront of open content use: just this week, the city of São Paulo specified that all educational materials produced for it must be released under the Creative Commons CC BY-NC-SA license.

It's true that there have also been some mixed signals recently, notably the re-surfacing of the punitive “cybercrime bill”, which Techdirt reported on a couple of months ago. But here's some positive news coming out of the country, in the shape of a draft of a bill for a civil rights-based framework for the Internet:

The draft bill proposition for a Civil Right’s Based Framework for Internet in Brazil has just reached Congress. The English translation of this version is available here.

It is the result of an initiative from the Brazilian Ministry of Justice, in partnership with the Center for Technology and Society of the Getulio Vargas Foundation (CTS/FGV), to develop a collaborative online/offline consultation process in which all the actors from Brazilian society could identify together the rights and responsibilities that should guide the use of the Internet in Brazil. The process, which resulted in a Bill of Law, is an example of the importance and the great potential of multistakeholder involvement on policy-making.

NGOs, universities, internet service providers (collectively though associations, as well as individually), business companies, law firms, law enforcement agencies, individuals, Brazilian Embassies from all over the world, and many other participants have joined the online public hearing. The participation of several stakeholder groups has promoted the diversity of opinions and the availability of high quality information and expert advise, which have helped the government to draft a balanced bill. The openness and transparency of the process, entirely conducted online, in the public eye, has improved the legitimacy of the bill. Marco Civil was introduced in Congress with the political weight and the legitimacy that the Bill would be expected to have after a complex multistakeholder discussion.

Among its fundamental principles:

I – safeguarding freedom of speech, communication, and manifestation of thought, in the terms of the Constitution;

II – the protection of privacy;

III – the protection of personal data, in accordance to the law;

IV – the preservation and safeguarding of net neutrality, in compliance with further regulation;

And this is *real* net neutrality, not the compromised US kind:

Article 9. The party responsible for the transmission, switching or routing of data has the obligation of granting equal treatment to every data package, with no distinction by content, origin and destination, service, terminal or application; any traffic discrimination or degradation that does not arise out of the technical requirements necessary to the adequate provision of services is prohibited, in accordance to further regulation.

It also comes out strongly in favor of guaranteeing access to the Internet, respect for personal privacy online, and against any kind of “three strikes” laws cutting off users for alleged copyright infringement:

Article 7. Access to the Internet is essential for the exercise of citizenship, and the following rights are secured to its users:

I – the non-violation and secrecy of communications on the Internet, except under judicial order, in the hypotheses and form established by law, for criminal investigations or the gathering of evidence for criminal procedures;

II – the non suspension of Internet connections, except for debts directly related to their use;

It has plenty to say on the vexed issue of keeping users' access logs, including:

Article 10. The storage and disclosure of the connection logs and Internet application access logs regulated by this law must preserve intimacy, private life, the reputation and image of the parties directly or indirectly involved.

§1 The Internet service provider responsible for the storage of logs will only be constrained to disclose the information that allows the identification of the user under a judicial order

Nor is ISP liability overlooked:

Article 14. Internet connection providers shall not be responsible for damage arising from content generated by third parties.

Article 15. Except otherwise established by law, Internet application providers can only be responsible for the damages caused by content generated by third parties if, after receiving a specific judicial order, they do not take action to, in the context of their services and under the established time frame, make unavailable the infringing content.

And the crucial issue of judicial requests for logs is also spelled out in detail:

Article 17. Interested parties may, for the purpose of gathering evidence in civil and criminal proceedings, of either accidental or autonomous nature, request a judge to order the party responsible for storing Internet service access logs, or connection logs, to disclose these logs.

Sole Paragraph. Without prejudice of other legal requirements, the application shall contain, under penalty of not being admissible:

I – solid evidence of the occurrence of an illegal act;

II – a motivated justification for the utility of accessing the requested logs, for the purposes of investigation or the gathering of evidence;

III - the period that the logs refer to.

Article 18. It is the obligation of judges to take the measures necessary to guarantee the secrecy of the information received, and the preservation of the intimacy, private life, honor and image of Internet users. Judges are capable, for that purpose, to constitute the information as secret, including with respect to requests for the storage of logs.

All-in-all, it's a remarkable document, forming in effect an "anti-ACTA" that guarantees many of the protections for Internet users that ACTA seeks to eradicate, and forbids repressive measures that ACTA aims to introduce.

However, two big questions hang over the draft. First, whether it will be passed by the Brazilian Congress in its present form (or at all), and, second, how it can be squared with the harsh penalties proposed in the “cybercrime” bill mentioned above if that too comes into force. But whatever happens, Brazil has already shown leadership by drafting a bill that dares to question and oppose the copyright maximalist orthodoxies underlying ACTA – something signally lacking in other countries.

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