Copyright law of Brazil
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The copyright law of Brazil is primarily based on Law Nº9,610 from 19 February 1998. Additionally, Brazil has signed the Berne Convention and the TRIPS Agreement.


History


Imperial period

Brazil's first constitution, the Imperial Constitution of 1824, did not deal with creative works, and instead only mentioned patents: The first legal document to deal with the protection of creative works in Brazil was the Law of 11 August 1827, which gave
jurist A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the Uni ...
course professors exclusive publication rights to their course's
compendia A compendium (plural: compendia or compendiums) is a comprehensive collection of information and analysis pertaining to a body of knowledge. A compendium may concisely summarize a larger work. In most cases, the body of knowledge will concern a s ...
for the 10 years following their approval by the government. However, the general protection of creative works in Brazil first came from article 261 of the Criminal Code of 1830. It protected any text ("or stamp") which had been written, composed or translated by Brazilian citizens, for the lifetime of the author, plus 10 years if they had any heirs. If such works were made by corporations, the protection lasted for 10 years after publication. While it was a step in the direction of an all-encompassing copyright protection, the Code of 1830 protected only written works, not any other kind of
artwork A work of art, artwork, art piece, piece of art or art object is an artistic creation of aesthetic value. Except for "work of art", which may be used of any work regarded as art in its widest sense, including works from literature ...
; this and other issues would be criticized by scholars in the decades that followed its enactment. For example, the then- barely invented photographs were also not considered for the 1830 text, and would likely not be illegal to reproduce in the following years as the technology developed. However, one must also consider the relative difficulty it would have been, in the mid to late 19th century, to copy or otherwise reproduce (a potentially single physical copy of) a photograph without authorization from the owner.


First Republic

Following the Proclamation of the Republic in 1889, copyright protections were expanded to encompass any type of artistic work – and no longer only literary works – in the Penal Code of 1890. The duration of copyright wasn't changed; it still lasted for the lifetime of the author, plus 10 years if they had any heirs. In 1891, copyright would finally become constitutional, in the first constitution of the Brazilian republic. That, in itself, was a landmark in terms of Brazilian copyright protections. The law had a clear separation of patents and copyright, and delegated the duration of copyright to the Penal Code – as such, it remained as lifetime of the author, plus 10 years if there were heirs. On 1 August 1898, Law Nº496 was promulgated, the first to explicitly mention "author's rights". It protected an author's right to reproduce (or authorize the reproduction of) their work – be it "literary, scientific or artistic" – through "publication, translation, representation or execution of any other kind". Counting from 1 January of the year of publication, the protection lasted 50 years for exact reproductions (i.e. exact copies), but it would only protect for 10 years the exclusive right to translate or otherwise represent the work in a non-reproductive way. For dead authors, owners of a posthumous work benefit from the author's rights, lasting 50 years counting from the date of death of the author. Author's rights of
anonymous Anonymous may refer to: * Anonymity, the state of an individual's identity, or personally identifiable information, being publicly unknown ** Anonymous work, a work of art or literature that has an unnamed or unknown creator or author * Anonym ...
or pseudonym works belong to the work's editor, but if the author is found or discovered, they obtain the rights. Crucially, this protection wasn't automatic: it was required that works be submitted to the National Library of Brazil until 31 December of the year following the publication. For printed works, photographs and
lithograph Lithography () is a planographic method of printing originally based on the immiscibility of oil and water. The printing is from a stone (lithographic limestone) or a metal plate with a smooth surface. It was invented in 1796 by the German a ...
s, the submission required "a copy in perfect conservation status"; for paintings, drawings, sculptures or other, a "perfectly clear" photograph of the work. A side effect of this time limit is that it would have made works created before 1897 uncopyrightable, as they would need to have been registered before the law was even promulgated.


Current copyright terms

For works where the author is known, copyright lasts for the lifetime of the author plus 70 years, counting from 1 January of the subsequent year after their death. If the author is unknown or anonymous, any unpublished work is in the public domain. For published works where the author is
anonymous Anonymous may refer to: * Anonymity, the state of an individual's identity, or personally identifiable information, being publicly unknown ** Anonymous work, a work of art or literature that has an unnamed or unknown creator or author * Anonym ...
or a pseudonym, the publishing party retains copyright for 70 years after publication, again counting from 1 January of the subsequent year. If the author is found or discovered before the work's copyright expires, it reverts to being lifetime plus 70 years. Audiovisual works (such as films) and photographs are protected for 70 years after their publication, counting from 1 January of the subsequent year. Apart from expired copyright and unknown authors, works in the public domain include those from authors who have died and left no successors.


Limitations

However, copyright is not all-encompassing in Brazil – it has some limitations. The following are not considered copyright infringements: * The reproduction of: ** Laws and technical standards; ** News or informative articles, in periodicals, as long as the name of the original author (if there is one) and of the original publication are mentioned; **
Public speech Public speaking, also called oratory or oration, has traditionally meant the act of speaking face to face to a live audience. Today it includes any form of speaking (formally and informally) to an audience, including pre-recorded speech deliver ...
es, in periodicals; ** Portraits or any other form of image representation, made-to-order, when reproduced by the owner, given that there is no opposition by the person represented in them or by their heirs; **
Literary Literature is any collection of Writing, written work, but it is also used more narrowly for writings specifically considered to be an art form, especially prose fiction, drama, and poetry. In recent centuries, the definition has expanded to ...
, artistic or scientific works, for exclusive use by the
visually impaired Visual impairment, also known as vision impairment, is a medical definition primarily measured based on an individual's better eye visual acuity; in the absence of treatment such as correctable eyewear, assistive devices, and medical treatment ...
, as long as the reproduction is noncommercial and uses braille or other appropriated procedure; * The nonprofit reproduction, in a single exemplar of few excerpts, for private use by the copyist, if made by themself; * The quotation in books, newspapers, magazines or any other means of communication, of sections of any work, for the purpose of study, criticism or controversy, of a justifiable amount of content, indicating the name of the author and the source of the work; * The collection of
lecture notes A lecture (from Latin ''lēctūra'' “reading” ) is an oral presentation intended to present information or teach people about a particular subject, for example by a university or college teacher. Lectures are used to convey critical inform ...
in an education institution by who they are directed to, barred their publication, in whole or in part, without authorization by the lecturer; * The use of literary, artistic or scientific works, audio recordings and radio or television transmissions in commercial establishments, exclusively for demonstration to clients, as long as these establishments
commercialize Trade involves the transfer of goods and services from one person or entity to another, often in exchange for money. Economists refer to a system or network that allows trade as a market. An early form of trade, barter, saw the direct excha ...
support or equipments that allow for its use; * Theatrical representation and musical execution, when done at home or for exclusively
didactic Didacticism is a philosophy that emphasizes instructional and informative qualities in literature, art, and design. In art, design, architecture, and landscape, didacticism is an emerging conceptual approach that is driven by the urgent need to ...
reasons in education establishments, given it is not-for-profit; * The use of literary, artistic or scientific works to produce judiciary or administrative
evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evidenc ...
; * The reproduction, in any work, of small sections of existing works, of any nature, or of the full work, when dealing with
plastic arts Plastic arts are art forms which involve physical manipulation of a plastic medium by molding or modeling such as sculpture or ceramics. Less often the term may be used broadly for all the visual arts (such as painting, sculpture, film and pho ...
, whenever the reproduction itself is not the main purpose of the new work and that it does not harm the normal exploration of the reproduced work or cause unjustifiable loss to the interests of the original authors.
Paraphrasing A paraphrase () is a restatement of the meaning of a text or passage using other words. The term itself is derived via Latin ', . The act of paraphrasing is also called ''paraphrasis''. History Although paraphrases likely abounded in oral tra ...
and parodying are also allowed, given that they are neither faithful reproductions of the originating work, nor disparaging to it. Additionally, Brazilian law has a
freedom of panorama Freedom of panorama (FOP) is a provision in the copyright laws of various jurisdictions that permits taking photographs and video footage and creating other images (such as paintings) of buildings and sometimes sculptures and other art works ...
clause, concerning permanently displayed works in the public space. It allows for their reproduction through paintings, drawings, photographs and "audiovisual procedures".


Fair dealing

Brazilian copyright law does not refer to its self-imposed limitations as " fair dealing" (or " fair use"), although some of them – such as the
right to quote Right to quote or right of quotation or quotation right is one of the copyright exceptions provided by the Berne Convention, article 10: "It shall be permissible to make quotations ... provided that their making is compatible with fair practice, an ...
– could be considered as such. That said, the law has a specific clause preventing what is most commonly referred to, usually in online spaces, as "fair use":


Notes


References


Bibliography

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External links


Portal Domínio Público
– Government's public domain portal
Brasiliana Fotográfica
– Portal for the National Library's photographic collection, Brazil Brazilian intellectual property law {{Brazil-law-stub