Brazil's Copyright Reform Proposal: Penalties For Hindering Fair Use Or The Public Domain
from the who-can-argue-against-that? dept
Brazil has been a very interesting country to watch lately. In the past, we’ve seen that a lack of safe harbor laws resulted in Brazilian courts regularly blaming 3rd parties for actions of others, but in the last few months, it looks like Brazil has decided to really clean up its laws — and is doing so in a very smart and forward-looking manner. The first part, we mentioned a couple months ago, involved setting up much smarter safe harbors than the US currently has. Rather than US-style “notice-and-takedown” (which creates serious free expression problems), Brazil went with a “notice-and-notice” setup, that let an accused party respond before their content gets taken down. Isn’t due process grand?
But in a move that may be even more significant, Michael Geist writes about Brazil’s newly proposed copyright laws that includes penalties and sanctions for hindering fair use or the public domain through the use of digital locks or DRM of any kind. In the past, we’ve asked anyone to explain why it makes sense to make circumvention of DRM for non-infringing purposes illegal, and no one gave us a good answer. Yet, the US DMCA makes it illegal — and Canada’s current copyright reform bill would do the same.
What’s especially surprising about Brazil’s approach isn’t just that it’s allowing non-infringing circumvention (which, alone, would be nice to see), but that it’s actually adding sanctions and punishment for those who block fair use or use of public domain works through digital locks:
The same sanction applies, without prejudice to other sanctions set forth by law, to whom, through whatever means:
a) hinders or prevents the uses allowed by arts. 46, 47 and 48 of this Act [which addresses limitations to copyright including fair dealing]; or
b) hinders or prevents the free use of works, broadcast transmissions and phonograms which have fallen into the public domain.
Breaking DRM for infringing purposes is still very much illegal, but what Brazil is saying here is that locking up the public domain, or blocking fair use will not be tolerated. I cannot fathom who could possibly be against such a proposal, but I imagine we’ll start to hear twisted arguments against it pretty quickly.