Brazil's Copyright Reform Draft Bill: The Good, The Bad And The Confused
from the hankering-for-the-old-days dept
As this timeline indicates, Brazil's attempts to draw up a copyright reform bill have been dragging on for five years now. That in itself wouldn't matter too much – the process of updating major laws is by its very nature a complex and slow process; but during those five years there has been a change of administration, and with it, apparently, some major shifts in policy.
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
However, balanced against what appear forward-thinking ideas on fair use are some retrogressive ones:
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
1. Internet service provider (ISP) liability : notice and take-down (with counter-notice)
There's also evidence of a confused and confusing approach to DRM and circumvention. One part of the draft bill states that copyright holders will be liable if they prevent or hamper exceptions and limitations to copyright, but another clause says that this doesn't apply if DRM is essential for the commercialization or for the licensing of works in the digital format (which lawyers will probably argue is always the case where piracy is present.)
2. works not protected : technical standards "per se" (such as the US' BlueBook)
3. copyright duration : life of the author plus seventy years – i.e., twenty years beyond the required by the WTO, and according to Brazil’s Central Bank, the country pays virtually 100 times more copyright royalties to the US than it receives from the US.
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.
Although the leaked draft certainly contains some good things, the exceptions and limitations are likely to lose much of their impact because of the complicated rules governing circumvention of DRM, which reduces the public benefit of the legislation considerably. Let's hope that further revisions rectify that, and maybe bring the proposed copyright law closer in spirit to the pioneering work of the previous Brazilian administration.