Copyright Week: What happened to the Brazilian Copyright Reform?

Mariana Giorgetti Valente (@mrnvlnt)
Pedro Nicoletti Mizukami (@p_mizukami)
Creative Commons Brazil
Center for Technology and Society @ FGV Law School, Rio

[Versão em português/Portuguese version]

While open licensing can be a powerful strategy to correct some of the many distortions produced by an unbalanced copyright system, there’s only so much that can be accomplished without a major overhaul of copyright law. Creative Commons has recently acknowledged this in a very eloquent statement in support of global copyright reform:

CC licenses are a patch, not a fix, for the problems of the copyright system. They apply only to works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them. The success of open licensing demonstrates the benefits that sharing and remixing can bring to individuals and society as a whole. However, CC operates within the frame of copyright law, and as a practical matter, only a small fraction of copyrighted works will ever be covered by our licenses.

Brazil is one of many countries facing the difficult task of copyright reform, and Copyright Week is a good opportunity to reflect on what has — and has not — been accomplished so far. The current law, passed in 1998, ranks as one of the worst rated copyright laws in Consumer’s International IP Watchlist, with a C- grade. When it comes the ongoing process to reform it, there are reasons to be both optimistic and concerned.

In December 2007, the Brazilian Ministry of Culture — then under Minister Gilberto Gil’s administration — started the National Copyright Law Forum, a series of seminars across the country with the participation of lawyers, researchers, artists and industry representatives, with the goal of gathering information and pave the way for a copyright reform process. Based on these events, and other closed and open meetings with different stakeholders, the Ministry of Justice prepared a draft copyright reform bill, which was submitted to public consultation in 2010.

The consultation took place in an online platform similar to that used for the Marco Civil consultation on Internet regulation. Comments could be submitted on an article by article basis, and the analysis of almost 8,000 contributions resulted in a project that was considerably superior to the current law, with greater attention to public interest issues, an expanded list of copyright exceptions — including a general clause —, the permission to circumvent DRM/TPMs in certain conditions, checks on the collective management of copyright (a serious problem in Brazil), and the explicit recognition that copyright may be limited by consumer protection law, antitrust law, as well as human rights.

When Dilma Rousseff was elected the 36th President of Brazil, however, the copyright reform process suffered its first major setback. To succeed Juca Ferreira as her Minister of Culture, Rousseff chose Ana de Hollanda, a singer with close ties to the recording industry and ECAD — the central office for collecting societies in Brazil —, one of the greatest adversaries of the draft bill. Indicative of how different her approach to copyright policy would be, one of the first measures de Hollanda took as Minister was to remove Creative Commons licensing from the Ministry of Culture’s website. Soon after, de Hollanda replaced most of the staff of the Ministry’s Intellectual Rights Directorship (Diretoria de Direitos Intelectuais), and mostly stalled the reform process, despite concluding a revision of the text.

One year and eight months after being appointed, de Hollanda was ousted from the Ministry, in great part — though not exclusively — due to her mishandling of copyright-related issues. The new minister, Marta Suplicy, signaled towards a continuation of the Gilberto Gil/Juca Ferreira years by hiring back Marcos Souza, who had been let go by de Hollanda, as the head of the Intellectual Rights Directorship. This took place in October 2012. Between then and now, the text went through a new round of modifications, and is now at the office of the Chief of Staff of the President of Brazil, ready to be sent to Congress.

Why, then, has it not been sent yet? And why wasn’t the final text published, considering this was a process that was conducted with a reasonable degree of transparency, at least in its initial stages?

1. Marco Civil and the battle over ISP liability. One of the most controversial bills currently at the House of Deputies is the aforementioned Marco Civil, which deals with, among other themes, net neutrality and ISP liability.

The issue of ISP liability in Marco Civil has clear copyright ramifications. The initial bill, also the result of a public consultation process, created a system in which content would be removed from the Internet only in response to court order, eschewing a notice-and-takedown system. Nonetheless, concessions made to cultural industry stakeholders, spearheaded by Organizações Globo, established an exception to the rule: the Marco Civil system is not applicable to copyright infringement, which will be dealt with by the copyright reform bill. Copyright reform should then stage one more spinous controversy.

2. The 2014 elections as an incentive for delayed action. Brazil will hold presidential elections in 2014. There is absolutely no incentive for Government to send major proposals to Congress before the matter of Dilma Rousseff’s reelection is settled.  Since some of bills at the House of Deputies in 2013 was already controversial enough — Marco Civil included — the Government decided to avoid the thorny issue of copyright reform. It is reasonable to expect that the copyright reform bill will not be introduced until after 2014 — and if Dilma is reelected.

Given this scenario, what is most troubling about the future ahead is that the entire copyright reform process could lose considerable momentum in 2014. A lot was already lost during 2013, considering civil society has turned its focus to Marco Civil. On top of that, the Snowden leaks and the upcoming Global Multistakeholder Meeting on the Future of Internet Governance, to be held in São Paulo, have turned copyright into a secondary concern. Privacy and surveillance seem to have taken the front stage.

A further complicating factor is that one of the main items in the copyright reform agenda has actually been passed into legislation last year: collective management regulation. Law 12.853/2013 provides for more efficiency and transparency in the management public performance rights, addressing a problem that was certainly among Brazil’s most serious when it comes to copyright and the recording industry. While this is definitely not be regarded as a step back, detaching the issue of collective management from the body of the copyright reform bill means that some of the stakeholders that were previously supporting the broader process will not be as interested in continuing to push for reform. A few might even oppose some of the reform items.

Finally, while the Ministry of Culture must be commended for its efforts in moving the conversation forward, researchers and civil society have not had access to the latest draft of the text — the one currently in the office of the Chief of Staff of the President of Brazil. Civil society organizations are trying to reestablish the network that was created during the initial stage of the reform process. It’s about time: we still have a long way to go, and the challenges ahead require a great deal of coordination and support from reform-minded individuals and organizations.

[Read other contributions to Copyright Week]

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