The Federal Supreme Court (STF) recently declared the constitutionality of the new Copyright law (Law 12853/2013), which directly affects the management, collection and distribution of the amounts related to copyright in Brazil.
A new decision regarding the payment of royalties caused the filing of two direct actions seeking the unconstitutionality of the new law (ADI 5062 and ADI 5065), questioning the establishment of a public entity to control the collection of royalties in the musical field. Prior to 2013, a private entity was solely responsible for the collection and the payment of royalties to those entitled to receive the relevant property rights, for the public exhibition or broadcast of music.
The controversy raised by the abovementioned actions leads us to consider the central purpose of any copyright legislation: to stimulate intellectual production by protecting its release to the public.
Without a functional mechanism of protection and a fair distribution of the compensation to those who form part of the intellectual production, humanity loses its most important intangible asset.
Analyzing a variety of foreign legal systems, it is noteworthy that there is no standard agreement on this subject: some practices allow a strong interference from the public sector, whereas others relegate the management of royalties exclusively to private suppliers.
Considering the new language of the law, it appears that the Brazilian system is migrating to an understanding whereby a public entity will have powers to act in areas that used to be controlled exclusively by private associations.
The plaintiffs of the actions argue that Law 12853/13 is a form of government interference in the private interest. They believe that there is no public interest to justify this interference in copyright management.
Justice Marco Aurélio, who rendered the only vote in favor of the actions, has a similar opinion. He believes that the new text violates article 5, XVIII, of the Federal Constitution, by indicating government interference in the operation of the associations.
On the other hand, Justice Luiz Fux, the reporting justice of the case, understood that, because the subject matter involves both copyright owners and users, there is consequently the need for a greater involvement of the State, with the intention of promoting trustworthy practices regarding royalty payments. The main role of this entity would be to guarantee transparency in a process that, over the years, has become cloudier rather than clearer.
Independent from the current legal controversy in Brazil, there can be no doubt that copyright is a matter that tends to generate a certain degree of conflict. This is especially true in a digital information scenario, where millennials and other actors/situations move quicker than the law can control.
To those who use legal devices to guarantee the interests of others, there is no other choice but to monitor the effects that the new law has on copyright management in Brazil.
* © Hannah Vitória M. Fernandes 2017