As a signatory to the Berne Convention, Brazil has a copyright system that is quite similar to the European one and all its Laws are based on the author’s rights. In this sense, there are three important points to focus on: (i) there are moral rights, which go beyond only proof of authorship and credit; (ii) interpreters, just like musicians and actors, have neighboring/related rights for their performance; and (iii) work does not need to be registered to be protected.
If a party wishes to register their work, it is possible, but this will be useful only as a proof of anteriority. At present, there is no centralized place to register such work, and the most recommended is the Brazilian National Library. The party is totally free to choose the best way to register the work or to create a proof of anteriority. Even proof created through Blockchain is now available and accepted in Brazil.
All sorts of works are protected under Brazilian copyright law, Law nº 9.610/1998, which also sets out a list of non-exhaustive examples of such protected works. The law only details that protected works should be:
“Creations of the mind, whatever their mode of expression or the medium, tangible or intangible, known or susceptible of invention in the future, in which they are fixed”
For most researchers, moral rights could be the main difference among each of the copyright systems, particularly when we think about those in common law countries, as these types of rights may not be transferred or even renounced in the Brazilian system, which could be a bit difficult to negotiate.
In general terms, it is possible to summarize the different kinds of moral rights in Brazil as: (i) claiming authorship; (ii) crediting; (iii) keeping the work unpublished; (iv) ensuring the integrity of the work; (v) amending the work; (vi) withdrawing the work circulation or suspending its use; and (vii) having access to the sole and rare copy of the work.
Moreover, after the author’s death its rights will be transferred to its successors. Owners of related rights also have moral rights, although, these are a little narrower in scope than those of copyright owners. To give one example of these provisions, everyone needs to be included in the credits, even voice actors and other performers.
This is an important point to consider before negotiating as well as in the assignment of patrimonial rights. Even though it is possible to transfer these rights, to protect the author, the Brazilian copyright law created several requirements that must be included in the agreement, so that the assignment is valid under the Brazilian law.
In this regard, the assignment clause should describe the territory, term, the specific rights and the means and the manner of how such right may be used, including describing the platforms, places, and the people who will use the assigned work. Also, for future works, the law restricts the validity of the clause to a five-year-term in the future.
Moreover, the fair use system is also different in Brazil. There are provisions in the Brazilian copyright law, which deal with all the possibilities. Comparing these to the Article 9.2 of Berne Convention, the provisions are a bit more conservative in favoring the author’s protection. Although, they are described in the law, it could be a bit difficult to fit some cases within the provisions, as it prescribes that:
“the reproduction in any work of short extracts from existing works, regardless of their nature, or of the whole work in the case of a work of three-dimensional art, on condition that the reproduction is not in itself the main subject matter of the new work and does not jeopardize the normal exploitation of the work reproduced or unjustifiably prejudice the author’s legitimate interests.”
Doubts about how to apply this provision and what a short extract is could only be analyzed on a case-by-case basis. It will also depend on which work you intend to apply this fair use rule to. It is recommended not only to consider the case, but also the other party’s behavior in this situation, as well as the relevant judicial precedents.
Most Brazilian judges are not familiar with copyright law, as it is not taught at most law schools and the cases that are taken to the courts tend to be minor, most being resolved by negotiation. Because of this, the parties may be surprised by quite distinct decisions.
It is important to note that, as Brazil follows civil law traditions, written rules should prevail over other provisions. Most judicial precedents are non-binding, except in some quite specific cases of the Superior Courts. Such decisions are very important in convincing the judge to rule in your favor.
With these ideas in mind, it is recommended to do some research on the Brazilian copyright system and talk to a Brazilian lawyer specialized in executing and applying international sample agreements in Brazil, because some of the clauses may not be applicable here. Giving two examples, the assignment of moral rights – the giving up of credits -, or generic and simplistic patrimonial rights transfer clauses).
In addition, the enforcement of this kind of agreement may be a bit more complicated as most are only executed in the English language and do not fit with the Brazilian copyright law. Such provisions could be found by a judge to be an invalid copyright transfer and, consequently, the party could be ordered to pay compensation for unauthorized use of the work, for example.
Moreover, it is important to remember that the clearance of the work will demand a bit more of attention and, maybe, some negotiation, in order to understand what is applicable in Brazilian agreements and to ensure a better management of the work’s assigned rights. Despite that, it is totally possible to develop and to spread Brazilian works worldwide and lawyers are prepared to provide a full chain of title, if necessary.
In conclusion, a final tip is not to underestimate this different system, but to understand it. As a result, the work will be fully available to be used worldwide.
Article published on The IPR Gorilla Magazine.