Thursday, April 17, 2003

School Material Reproductions in the Brazilian Legal System
Denis Borges Barbosa, Ana Beatriz Nunes Barbosa
The 1998 Brazilian Copyright Law protects creations of the spirit, expressed by any means, tangible or intangible (Art. 7 of Law 9.610/98). As an inaugural member of all major international agreements on intellectual property issues, Brazil has a full coverage copyright system, contrary to what some uncritical press articles would suggest.
In fact, what strikes the most about the Brazilian system is its exceedingly strong copyright system, at least as a body of statutory law and sometimes, by means of unprecedented enforcement. As evidence of that, some Brazilian newspapers noticed that some of the most important law schools have been recently raided by police to search and destroy all school material reproduced by or on request of students. In one case, the law school dean himself had to oppose personally against the seizure of material copied by him from a book he has authored himself. To no avail: the police captain took from him both the original and copy.
This article explores briefly the problem of didactic use of copyright material and its constraints under the Brazilian law. That enforcement can be more efficacious against universities than against professional pirates is just one aspect of an extremely unbalanced and probably unconstitutional IP system.
Education is a major constitutional interest in Brazil; intellectual property is a constitutional interest also, but as any property, subject to the same subjection to social interests as declare by the German Constitutional Court in the case Schulbuchprivileg (BverfGE 31, 229 de 07.07.1971): within the balancing of interests criteria, due regard should be given to the educational purposes in regard to copyright. That’s why the Brazilian rigorist trend seems to be undue and illegal.
Constitutional balancing is reflected specially in the fair usage doctrine. Fair usage cases under Brazilian law are treated as limitations to the copyright’s exclusive rights. The rule that allows anyone to use a work protected by copyright is limited to specific cases.
The first is citation, in any work, of small parts of preexisting works, of any nature, or the whole piece, when dealing with visual art, always when the reproduction is not the main objective of the new work and that it does not impede or diminish the regular exploitation of the reproduced work or causes an unjustified loss to legitimate interests of the authors.
Citation is “an accessory that is included in a work as ornaments to clothes” (this is an example of citation, and as so, the origin is required - Sá Pereira, apud Viera Manso, Direito Autoral, Ed. José Buchatsky, 1980). The citation cannot be a new work per se.
A periodical may transcribe news or an informative article, published in newspapers or periodicals, mentioning the author, if signed, and from where it was transcribed.
A periodical (but not the general public) also can reproduce public speeches – including seminars and conferences published in a legal conference, as an example, always respecting the principle of present timing of the information (this explains why the exception applies to periodicals).
Secondly: the citation in books, newspapers and magazines or any other means of communication, of parts of any work, for educational, critical or polemic purposes, as may be justified, indicating the author’s name and work.
Pictures also may be copied, or any ordered image reproduction, when the copier is owner of the ordered object, if the person represented in such image or his heirs do not oppose to such copy.
Nevertheless, paraphrasing and parodies that neither truly copy nor discredit the original work are permitted. Or else, if a serious and grave work is turned into a humorous piece and played with, in an artful manner, be my guest.
On the other hand, art existing in public places is free. Such rule, however, does not apply to photography. The same is said of a picture or drawing of a person, painted or drawn under request (not photography), when the reproduction is demanded by the owner of the art work, as long as the image rights of the person represented and his heirs is respected.
The law still establishes the following cases:
a) reproduction of courses in educational environment by those who are being lectured, being the full or partial publishing, without previous authorization from the lecturer;
b) use of literary artistic or scientific texts, phonograms and radio and TV transmission in commercial establishments, exclusively for their clients, as long as these establishments commercialize the equipment that allow its use;
c) theatrical representation and musical execution, when realized in home or, for exclusive educational purposes, within (but not without) the educational institution, with no profit intention;
d) use of use of literary, artistic or scientific reproduction for judiciary or administrative evidence;
e) reproduction of literary, artistic scientific work for exclusive use by visually deficient people, in Braille or other similar means, with no commercial purposes;
f) reproduction in one copy only of small parts of the work for private use with no profit intention.
Therefore one copy of small parts of any work (although not the whole piece), as long as there is no profit intention, is possible. Or else, for personal use, without second intentions. Such law does not extend to software law context.
In relation to the possibility of reproductions for personal use with academic intentions, the previous law allowed such copying, intending to incentive education. Nevertheless, the new law (Law 9610/98) limited such possibility of use (Art. 46) for small portions and one copy only, for private use with no profit intent. This is the most important aspect for school material copying: you just can copy privately small portions of the work. One page of a law article, but not the whole or any extended part of the work.
Such excessive protection can be verified also in another context, in a case presently in exam in the Brazilian Courts, which we wish to present hereby. The tendency of favoring the alleged author has been even overcoming the law itself, implying in, if such position is maintained, and an absolute chaos on the present educational system, especially in the case of law schools.
Art. 8, IV of Law 9.610/98 establishes that treaties or conventions, laws, degrees, rules, case law and other official acts are not subject to copyright protection. Nevertheless, an attorney employed by the Brazilian Securities Commission, having written an opinion in the course of his employment that was published in the Securities Commission internet site as Mandatory Legal Opinions, or else, that would be of public domain in accordance to the present law, filed a suit against an academic institution that copied parts of his opinion to present to students in legal classes.
Surprisingly, the Brazilian courts have granted protection to the plaintiff, considering he was the author of the opinion and, as so, would have right to be indemnified. It must be noted that such decision disregards the law that considers available to public access all documents of administrative procedures, except when the secrecy is necessary for social interest or if specifically declared by the law (Art. 8 of Law 6.385/76). Finally, such decision ignored that fact that the Commission itself had put the legal opinion available to the public.
The increasing overprotection is a concern not only verified in Brazil but also in many other countries. Regarding the specific question of public employees we can exemplify: In Italy, all material produced in service of the government is considered as public and France has case law reflecting the same position.
If there is need for a certain public domain, why has the trend in legislating and interpreting such laws been more to restrain the possibility of use? What is been noticed presently is a modification in the legal purpose: copyright at first, viewed protection of creativity. Now, with the law granting more power to exclude access than might be required, the general public must use of creativity to escape from copyright and its penalties.

This is a worldwide concern. Such position, in special regarding information available on line, has been sustained by Harvard academics that are now attempting to give internet users more certainty on what is legal and to incentive those who wish to grant the public with information. In fact, Berkman Center of Harvard Law School even presented a suit viewing the annulment of the law that increase the period of copyright law protection from 50 to 70 years from the author’s death. In this case, in order to protect Disney and his family, who made fortune on stories that were known as public domain, and with excuse of being an incentive to artists, increasingly the public is been excluded from using information.
If in the USA the academics against copyright encroachment find themselves as a minority, in Brazil there is even less criticism regarding the copyright law. While the press abroad claim against piracy in the third world, overreactions as in the Brazilian case may harm much more the IP system than any singular pirate could do. As the Romans put it, Summum jus, summa injuria – when the right is too much, it is turned into oppression.

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