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
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
However, balanced against what appear forward-thinking ideas on fair use are some retrogressive ones:
1. Internet service provider (ISP) liability : notice and take-down (with counter-notice)
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.
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.)

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.

Follow me @glynmoody on Twitter or, and on Google+

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: brazil, copyright, reform

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. identicon
    Anonymous Coward, 23 Dec 2011 @ 7:22am

    Many of 1 - 12 are already embraced to various extents within Fair Use and limitations contained in Chapter 1 to Title 17.

    Some that are not embraced wholesale is because they are open-ended invitations that are ripe for abuse. For example, persons with disabilities have been acknowledged as a legitimate goal, but the issue has always come down to "what is a qualifying disability?" One need only think for a moment about "disabled" parking stickers to realize the concern.

    Private copying has appeal, but it likewise is ripe for abuse. Current US law generally supports things such as ripping a legitimately purchased article for use on other equipment owned by the purchaser (cell phone, iPad and other tablets, computers, personal music players, etc.). Problem here is there appears, from the language used in the about list, that purchaser X would potentially be able to "share" his copy via any number or means with many, many others (perhaps even P2P). Religious activities may run afoul of the Second Amendment. Educational copying gives a free rein that is not exactly warmly embraced by the creators of works intended specifically for sale to educational institutions. There is an accommodation in US law, but it incorporates certain limitations. The scope of 12 does not jump out at me.

    The point I am making is that virtually of of the 12 items have been extensively debated in the US, but at always the devil is in the details.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.