How does the EU’s new copyright directive compare with Brazilian Law?

By Antonio Curvello

On March 26, 2019, the European Parliament voted in favor of the new EU Copyright Directive in the Digital Single Market. As 73% of young European internet users listen to music, watch TV series and films or play games online[1], one of the Copyright Directive’s changes lies on how online content sharing services should deal with copyrighted content.
Now, platforms that rely on user-uploaded content are now required to obtain from the rightsholders an authorization to make a copyrighted content available to the public.

In the absence of a deal, online content-sharing service providers may be held liable for unauthorized acts of communication to the public of copyright-protected works unless they are able to demonstrate that they have made a real effort to obtain a license AND acted expeditiously to stop users from accessing unauthorized content. Online platforms with more than three years and an annual turnover over EUR 10 million must also make best efforts to prevent the future uploads of said notified works.

In Brazil, Law 12,965/14 provides that internet providers can only be held liable for damages resulting from content generated by third parties if, after a specific court order, they do not take any steps to timely make unavailable the infringing content.

However, this liability exemption depends on a specific legal provision, which so far hasn’t come. Accordingly, Brazilian courts have steadily been applying the Brazilian Copyright Law and dismissing copyright infringement claims if, after communication, the internet provider removed the infringing content from its platform or blocked its access.

As see with EU’s GDPR and the Brazilian similar law approved in August 2018, European laws can influence Brazilian policy. Thus, considering the fast-growing consumption of online content by Brazilians[2], it is very important to see the discussions that the new EU Copyright Directive’s article 17 may generate in in Brazil and how it may impact Brazilian lawmakers.

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