As Brazil is a member of the Berne Convention, copyright protection under Brazilian Law is inherent to the creation of the work and no registration is necessary for the enforcement of rights against third parties, provided that the legal conditions of protection are met.
Law no. 9,610/98 (the “Brazilian Copyright Law” or “BCL”) sets forth, in Article 7, that all creations of the spirit expressed by any means or affixed in any type of tangible or intangible support are protected as intellectual works.
From that legal definition and the doctrine developed on the subject, it is possible to draw two main conditions with which an intellectual work must comply to be entitled to protection in Brazil:
(i) the work must be externalized in some form, meaning that the work cannot be a simple idea; and
(ii) the work must be original. The uncertainty around the definition of originality has led to different doctrinal approaches: on one hand, we find the objective approach where a work is considered original when it is novel; on the other hand, according to the subjective approach, an original work is a work that expresses the author’s individuality/personality.
Brazilian Courts have applied different thresholds according to the type of work, but it is safe to say the work must contain a minimum level of creativity to be protected in Brazil.
Based on the presumption that copyright can arise in literary, artistic and musical works, are there any other works in which copyright can subsist and are there any works that are excluded from copyright protection?
Under the BCL, copyright protection is given to any type of intellectual work that meets the legal criteria and is not expressly excluded from protection.
As examples of work subject to protection, Article 7 of the BCL sets forth that copyright can arise in works such as:
• literary, artistic or scientific works;
• lectures, speeches, sermons and other works of the same nature;
• dramatic works with or without accompanying music;
• choreographic works and pantomimes, if their scenic performance can be fixed in writing or any other form;
• musical compositions with or without accompanying words;
• audio-visual works, with or without accompanying sound, including cinematographic works;
• photographic works and works produced by a process similar to photography;
works of drawing, painting, engraving, sculpture, lithography and kinetic arts;
• illustrations, geographical maps and other works of the same nature;
• plans, sketches, and works of fine art concerning geography, engineering, topography, architecture, landscaping, scenography and science;
• adaptations, translations and other transformations of original works presented as new intellectual creations;
• computer programs; and
• collections or compilations, anthologies, encyclopaedias, dictionaries, databases and other works that, in view of the selection, organization or arrangement of their contents, constitute intellectual
Conversely, Article 8 of the BCL expressly sets forth that the following are excluded from protection:
• ideas, normative procedures, systems, methods, projects or mathematical concepts as such;
• schemes, plans or rules to carry out mental acts, games or businesses;
• blank forms to be completed with any kind of information, whether scientific or not, as well as their instructions;
• texts of treaties and conventions, laws, decrees, regulations, court decisions and other official acts;
• information of common use such as calendars, agendas, registries or captions;
isolated names and titles; and
• the industrial or commercial use of ideas contained in the works.
Is there a system for registration of copyright and, if so, what is the effect of registration?
Although copyright protection is inherent to the creation of the work, the Brazilian legal system sets forth the relevant registration procedure. An important benefit of copyright registration is securing hard evidence of the rights thereto. Since the main challenge in copyright- based lawsuits/infringements is to prove authorship and the creation date, having an actual document issued by a public office attesting that the copyright constitutes prima facie evidence of ownership and validity is recommended.
With the exception of computer programs, which are registered by the Brazilian Patent and Trademark Office, intellectual works can be registered before public offices, such as the National Library, the School of Fine Arts and the School of Music. Each institution has its own procedure and related costs.
What is the duration of copyright protection? Does this vary depending on the type of work?
Copyright is vested on moral and property rights. Moral rights are perpetual while property rights are limited in time.
The overall rule for the duration of property rights is 70 years, as of January 1st of the year following the author’s death.
In the case of jointly owned works, the 70-year period will be as of the death of the last surviving co-author.
Moreover, anonymous works or works published under pseudonyms will also be protected for 70 years as of January 1st, following the first disclosure of the work. The same applies to audio-visual and photographic works.
Is there any overlap between copyright and other intellectual property rights such as design rights and database rights?
Yes, it is possible to accumulate different intellectual property rights to the same work, provided that said work meets the protection requirements for each intellectual property right, which differ substantially from one another. Usually, copyright overlaps with 3D trademarks and industrial design rights, although it is possible for a computer program to be protected as copyright as well as being part of an invention protected by a patent, if the industrial invention is implemented by software. In this case, the computer program itself would not be protected, but rather the invention itself.
Are there any restrictions on protection for copyrighted works that are made by an industrial process?
Article 8 of the BCL establishes that the industrial or commercial use of ideas contained in the works is not subject to protection.
This has led in the past to a false interpretation that works made by an industrial process are not entitled to protection under copyright law.
Accordingly, Brazilian judges were sceptical in granting copyright protection for goods manufactured by an industrial process.
Nowadays, this controversy seems a bit outdated, and important case law has in general terms afforded copyright protection for products made by an industrial process, such as bags and purses, under the argument that the means reproducing the work does not affect in any way the protection granted by copyright.
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