Friday, February 07, 2003

On the enforcement of Copyright Laws in Brazil

At 10:11 06/02/03 +0200, you wrote:

May I just add to the comment made by Linda Gruber : "Copyright is not working today as it did initially because more people are breaking the law". One has to look at why this could be happening. Perhaps too many copyright restrictions are encouraging non-compliance. If consumers in developed countries are complaining about copyright restrictions and the term of copyright being too long, think how it affects developing countries.

In most developing countries, there is a high level of illiteracy and dire poverty and many people can't afford to buy food, clothing, basic amenities, let alone buy books and expensive journals to get educated. In most instances, their only means of getting information in their quest for education is via photocopied material. Unfortunately the majority of printed works available are published by international publishers who charge very high prices and very high copyright royalties too, which most developing countries cannot afford. Even if there were funds to pay for copyright fees, the copyright laws themselves are restrictive about multiple copying, who can make copies, etc.

Too many copyright restrictions are making information inaccessible. The more restrictions, the more chance that there will be infringements. In fact, too many restrictions will encourage non-compliance. Although it can't be condoned, how else can they get information? Isn't it better to make it easier for illiterate people to learn to read by making material more available, especially in the public domain? In the end, they will become educated and perhaps buy books one day and even become authors and publishers. If they cannot get material to learn to read, they will never become literate. How will they ever read and understand the Copyright laws!! Let's face it there has to be a better balance - and extension of the copyright term is certainly not providing the balance.

D. Nicholson
South Africa
Echoing Mr. Nicholson's words from the other side of the Atlantic, non compliance tends to increase, not to reduce, when you escalate up the legal constraints without the evidence of social interest in such escalation. In a seminar in our State Supreme Court in August 2001 I asked the public (mostly trial and appellate judges) how many of them has done recently very simple acts like copying a program from TV to VTR for later viewing, or photocopying an article from a law review for their professional use. Under the current Brazilian Law, those acts are not covered by fair usage exemptions. As I expected, the whole audience indicated that at least one of those acts were an everyday occurrence. I informed the learned public they were continuing criminals, according to the very strong but impossible 1998 law.

The fact had some impact on the local press. Some comments reflected that it is unenforceable the law, the meaning of which for the people (and, as then demonstrated) for the courts are at least largely artificial or imported.

If you live along with people that are being benefited by a stepped up law, or has the idea that the rigors of the rule eventually could be as useful for the receiving as to the inflinging end, compliance is easy. When the economy benefited by the increase of rigor is not your economy, even the common sense of wrong is mainly lost. On the other hand, the argument for the maintenance of the source of production (authors must be incentivated to create, Hollywood must get money to pay for improved SciFi tired movies) are lost if the price whereby the cultural products reach the public prevents most of it to enjoy from the creation.

Statutes devised to prescribe far beyond their efficient scope are bad in themselves and damaging to the Law as a whole. Efficiency must be adaptative, and returns must be calculated taking into consideration the optimum level of loss; therefore, Copyright rules in developing countries must conform the actual needs of such country and not the one-size-fits-all system. Publishing industry return expectations must take into account that selling a record at US$ 29.00 in Hannover and Rio de Janeiro must be an easy to figure target but mostly impossible one. Tagging a Rio price to US$ 2.90 - preposterous as it would seem - would ban the pirate street vendors from the peddling areas downstairs. And raise (possibly) the industry's overall income. Stronger Copyright enforcement in Germany would prevent the Gresham's Law effect (IP was invented exactly for that - protecting markets from cheaper lke products, wasn't it?).

Stepping up of rules must be reserved for such countries where copying is just laziness or greed, or where piracy entrepeneurship is rampant. Like Canal Street in New York, where the third world gets its supply of fake Gucci under the indifferent eyes of the zero crime mayors.

This is not third world-type speech. This is just regular Law & Economics rationale. Or at least I think it is.

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