Legislation and enforcement

Relevant legislation

What is the relevant legislation?

Copyright is regulated in Brazil by Law No. 9,610 of 19 February 1998 (the Copyright Act). Software, though listed in the Copyright Act, is covered in more detail by a separate piece of legislation: Law No. 9,609 of 19 February 1998 (the Software Law). However, the Copyright Act is applicable to software when the Software Law does not address a specific issue.

The Brazilian Criminal Code (Decree-Law No. 2,848 of 7 December 1940) also contains particular provisions about copyright.

Enforcement authorities

Who enforces it?

The Ministry of Culture is the primary government body responsible for the enforcement of copyright statutes and regulations. It is formed of:

  • three boards of directors, including the intellectual rights board that supports, creates, implements and evaluates policies related to copyright in Brazil;
  • three independent bodies - the National Agency of Film (ANCINE), the Brazilian Museums Institute (IBRAM) and the National Institute of Historic and Artistic Patrimony Heritage (IPHAN);
  • five foundations, including the National Library Foundation, which are responsible for registering works protected by copyright;
  • six secretariats; and
  • local representations throughout the country.

The Public Prosecutor’s Office also enforces the law since it is an independent entity responsible for supervising compliance with laws and respect for social and individual rights. Brazil also has police precincts specialising in intellectual property-related matters that carry out investigations whenever a copyright infringement is detected.

Civil disputes involving copyright are decided by the state courts while criminal cases are held by criminal state courts.

Online and digital regulation

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

The Copyright Act has few particular provisions about digital exploitation of works.

The definition of ‘reproduction’ in section 5 item VI encompasses making one or more copies of works in any permanent or temporary storage by electronic means or any other means of fixation that may be devised in the future.

The definition of intellectual works in section 7 encompasses creations of the mind whatever their mode of expression or the medium, tangible or intangible, known or that may be devised in the future.

In broad terms, section 29 states that the express prior authorisation of the author of a literary, artistic or scientific work shall be required for any kind of use, including complete or partial reproduction, publication, distribution and transmission, among others, of the author’s work.

In item VII of article 29 the law defines distribution for the purposes of offering works or productions by cable, optic fibre, satellite, electromagnetic waves or any other system enabling the user to select a work or production and receive it at the time and place of his choice, provided that the access to the works or productions is made through any system requiring payment on the part of the user.

Item 1 of section 30 contains an exclusion, regarding digital exploitation in that the exclusive right of reproduction shall not be applicable where the reproduction is temporary and done for the sole purposes of making the work, phonogram or performance perceptible by means of an electronic medium, or where it is transitory or incidental, provided that the reproduction is done in the course of the use of the work that has been duly authorised by the owner

Section 184, paragraph 3 of the Brazilian Criminal Law deals more closely with the concept of digital exploitation, as it classifies copyright infringement as a crime and fixes a penalty of two to four years imprisonment and a fine if:

[T]he violation consists of offering to the public by cable, fibre optics, satellite, radio waves or any other system that allows the user to select a work or production to receive it at a time and place previously determined by those who make the demand, for profit, directly or indirectly, without the express authorisation, as appropriate, from the author, performer, producer, or those who represent them.

Law 12,965, from 23 April 2014, which regulates the internet environment, excluded copyright from the scope of the Law while addressing the civil liabilities of internet service providers (ISPs) and establishing a judicial notice-and-takedown proceeding, since there is a pre-draft bill being discussed regarding copyright reform in Brazil (see ‘Update and trends’). Therefore, digital exploitation of copyrighted works in Brazil still lacks proper and specific legislation.

Extraterritorial application

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

There is no such express provision in Brazilian copyright legislation. However, if the acts of infringement are considered to have been performed in Brazil’s national territory, local courts applying rules regarding jurisdiction under the Civil Procedure Code may decide that they have jurisdiction, even if the website is foreign-owned or foreign-operated.

Agency

Is there a centralised copyright agency? What does this agency do?

There is no centralised agency. As mentioned in question 2, the Ministry of Culture and its boards of directors, independent bodies, foundations, secretariats, and local representations are the bodies that are primarily responsible for enforcing copyright in Brazil.

Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

A ‘protected work’, or more accurately a ‘protected intellectual work’, is defined in section 7 of the Brazilian Copyright Act as ‘creations of the spirit, expressed by any means or fixed in any support, tangible or intangible, known or which may be invented in the future’.

Section 7 continues with a 13-point non-exhaustive list of examples of ‘protected intellectual works’, which are as follows:

  • literary, artistic and scientific texts;
  • conferences, speeches, sermons and other works of the same nature;
  • dramatic and dramatic-musical works;
  • choreographic and pantomime works, whose scenic performances are fixed in writing or by any other means;
  • musical compositions, with or without lyrics (the lyrics can also be protected separately as a literary work);
  • audiovisual works, with or without sound, including cinematographic works;
  • photographic works and those created by any process that is analogous to the photographic process;
  • drawings, paintings, pictures, sculpture, lithography and kinetic art;
  • illustrations, geographical charts and other works of the same nature;
  • projects, sketches and plastic works concerning geography, engineering, topography, architecture, landscaping, scenography and science;
  • adaptations, translations and other transformations of the underlying works, presented as new intellectual creations;
  • computer programs (software); and
  • collections, compilations, anthologies, encyclopaedias, databases, dictionaries, and other works which, owing to the selection, organisation and disposition of their content, constitute an intellectual creation.

Performance of a pre-existing work by individuals (neighbouring rights) is also protected by the Copyright Act. Further, the neighbouring rights of producers of phonograms and of broadcasting organisations are expressly protected (sections 89 to 100), as is software (the Software Law).

Copies of works of art made by the author have the same protection as the original work (section 9). In addition, the protection of intellectual works includes the protection of their titles when related to a specific intellectual work if they are original and cannot be confused with the titles of prior works of the same type (section 10).

Rights covered

What types of rights are covered by copyright?

Section 29 of the Copyright Act includes a non-exhaustive list of types of use of a copyrighted work that require the prior authorisation of the work’s owners, which are as follows:

  • complete or partial reproduction;
  • publication;
  • adaptation, setting to music or any other transformation;
  • translation into any language;
  • incorporation in a phonogram or in an audiovisual production;
  • distribution not provided for in a contract signed by the author with third parties for the use or exploitation of the work;
  • distribution for the purpose of offering works or productions by cable, fibre optics, satellite, electromagnetic waves or any other system enabling the user to select a work or production and receive it at the time and place of his or her choosing, provided that access to the works or production is made through any system requiring payment on the part of the user;
  • direct or indirect use of the literary, artistic or scientific work in one of the following forms:
    • performance, recitation or declamation;
    • musical performance;
    • use of loudspeakers or comparable systems;
    • radio or television broadcasting;
    • reception of a radio broadcast in places frequented by the public;
    • provision of background music;
    • audiovisual, cinematographic or equivalent presentations;
    • use of man-made satellites;
    • use of optical systems, telephone or other lines, cables of all kinds, and such comparable means of communication as may be devised in the future;
    • exhibition of works of three-dimensional and figurative art;
  • incorporation in databases, storage in a computer, microfilm and any other means of archiving of that kind; and
  • any other form of use that exists at present or might be devised in the future.
Excluded works

What may not be protected by copyright?

The Brazilian Copyright Act expressly excludes a number of works from protection in an exhaustive list (section 8). Thus, the following works are not protected by copyright:

  • ideas, normative proceedings, systems, methods, projects or mathematical concepts;
  • schemes, plans or rules for mental acts, games or business;
  • blank forms to be filled in with any type of information, scientific or otherwise, and instructions for filling in such forms;
  • texts of treaties, conventions, laws, decrees, regulations, court decisions and other official acts;
  • information which is in common use, such as calendars, agenda, registrations and subtitles;
  • isolated names and titles; and
  • the industrial or commercial use of ideas contained in works.
Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

As a civil law country, Brazil does not have provisions akin to those of fair use or fair dealing. Rather, there is an exhaustive list with limitations on the rights of the authors that can be raised as a defence in litigation.

According to section 46 of the Copyright Act, the following do not constitute copyright infringement:

  • the reproduction:
    • of news in the daily or periodical press, or of an informative article published in a daily or periodical publication, including the name of the author (if the work is signed) and title of the publication from where the work was taken;
    • in daily or periodical publications of speeches made in public meetings of any nature; and
    • of portraits, or of any other representation or image, made for hire, when reproduced by the person who hires the artist, provided there is no opposition by the person in the portrait or his or her heirs;
  • the reproduction, in a single copy, of short extracts from a work for the copier’s private use, provided that it is done without a profit motive (changing the format and time-shifting, even if for private purposes and of the entire work, would, in principle, be an infringing act);
  • the citation in books, newspapers, magazines or any other means of communication of extracts of any work, for the purposes of study, criticism or controversy, to an extent that is justified to achieve the given purpose, indicating the name of the author and the origin of the work;
  • notes taken in teaching facilities by the people at whom the teaching is aimed, provided the full or partial publication has the prior and express authorisation of the person who taught;
  • the use of literary, artistic or scientific works, phonograms or radio and television broadcasts in commercial establishments, exclusively for demonstration to clientele, provided these commercial establishments commercialise the support or equipment which permit their utilisation (eg, stores that sell CDs and DVDs are allowed to play the musical or audiovisual works contained in these media inside their establishments without any prior authorisation);
  • stage representations (theatrical works) and musical executions when made in the family circle or with a didactic purpose at teaching establishments, provided they are made without a profit motive;
  • the use of all copyrighted works for the purposes of producing evidence before the courts or before an administrative entity; and
  • the reproduction, in any works, of short extracts of pre-existing works of any nature or of the entire work, when of visual art, whenever the reproduction in itself is not the main objective of the new work and when the normal exploitation of the reproduced work is not impaired nor is unjustified damage caused to the author’s legitimate interests.

In addition, paraphrases and parodies can be freely made so long as the original work is not reproduced and they do not cause discredit to the author (section 47). Works permanently situated in public spaces can be reproduced by paintings, drawings, photographs and audiovisual proceedings (section 48).

Finally, copyright on software is subject to a different set of limitations. Section 6 of the Software Law stipulates that the following will not be deemed to be infringement:

  • the reproduction in a single copy of a legitimately acquired copy, for backup purposes;
  • the partial quotation of the program, for didactic purposes, so long as the author is identified;
  • a similarity between two programs when this is due to the functional characteristics of their application, obedience to normative or technical precepts, or the limitation in the number of alternative forms of expression; and
  • the integration of a program, maintaining its essential characteristics, to an operational or application system which is technically indispensable to the needs of the user, provided it is for the exclusive use of the person who performed the integration.
Architectural works

Are architectural works protected by copyright? How?

According to section 7, item X of the Copyright Act, architectural works are protected by copyright. The treatment given to architectural works is the same as that given to any other work covered by this section.

The author of an architectural project can repudiate authorship if it is altered without his or her consent, during or after completion of the construction (section 26). Where this occurs, the proprietor of the modified construction will have to pay damages caused to the author if the author’s name is mentioned (by the proprietor) as being the author of the project (section 26).

Performance rights

Are performance rights covered by copyright? How?

According to the Copyright Act, performers have the right to allow (royalty-free or otherwise) or prohibit the following acts:

  • the fixation of their interpretations or executions;
  • the reproduction, public performance or rental of their interpretations;
  • the making available to the public of their interpretations in a manner that any person can access at a time and place of their choice; and
  • any other mode of utilisation of their interpretations.
Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

The Copyright Act also recognises the so-called ‘neighbouring rights’ for phonogram producers (section 93) and broadcasting organisations (section 95).

Phonogram producers have the exclusive right to authorise or prohibit, either for a consideration or free of charge, the reproduction, distribution, communication to the public, or any other form of use of their phonograms.

Broadcasting organisations, in turn, have the exclusive right to authorise or prohibit the retransmission, fixation and reproduction of their broadcasts, and the communication of those broadcasts to the public by television in places frequented by the said public, without prejudice to the rights of the owners of the intellectual property embodied in the programmes.

Moral rights

Are moral rights recognised?

Moral rights are very important components of copyright legislation in Brazil. Because intellectual works are considered to be ‘creations of the spirit’ (section 7), they are treated as an extension of the personality of the author and must, therefore, be carefully protected.

In light of the above, moral rights cannot be assigned or waived (section 27). As a consequence, they cannot be owned by a legal entity in any circumstances, even in cases where the legal entity is the initial owner of the relevant work.

The moral rights of the author (section 24) are as follows:

  1. the right at any time to claim authorship of the work;
  2. the right to have the author’s name, pseudonym or agreed-upon sign or symbol indicated or announced, as being the author, in the exploitation of the work;
  3. the right to keep the work unpublished;
  4. the right to maintain the integrity of the work, by opposing any modifications or the practise of an act which may in any way affect him or her as the author, or his or her reputation or honour;
  5. the right to modify the work, before or after it is used;
  6. the right to withdraw the work from circulation or to suspend any form of already authorised exploitation, when the circulation or exploitation may adversely affect his or her reputation and image; and
  7. the right to have access to a single and rare original or copy of the work for the purposes of preserving the work’s memory by means of photographic or similar process, in a way that causes the least inconvenience to the owner of the work who, in any event, will be indemnified of any damages caused.

After the death of the author, the rights referred to under points (i) to (iv) above will pass to his or her heirs who, in turn, will have the right to enforce them (section 24, first paragraph).

Copyright formalities

Notice

Is there a requirement of copyright notice?

There is no such requirement.

What are the consequences for failure to use a copyright notice?

Taking into account that copyright notice is not a legal requirement in Brazil, there are no consequences for not displaying a copyright notice.

Deposit

Is there a requirement of copyright deposit?

No. A deposit is not mandatory for copyright purposes. Literary works which must be deposited before the National Library, but this is for the purposes of controlling Brazilian literary heritage and the defence and preservation of the national language and culture (Law No. 10,994 of 14 December 2014). This law also includes foreign works published in Brazil.

What are the consequences for failure to make a copyright deposit?

A deposit is not mandatory for copyright purposes.

Law No. 10,994 of 14 December 2004 establishes that not depositing a work with the National Library may lead to a fine of 100 times the current price of the work, or the seizure of a sufficient number of samples required to fulfil the legal deposit.

Registration

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

Section 19 of the Copyright Act says that any author may register his or her work with the public body defined in the introduction and in paragraph 1 of article 17 of Law No. 5,988 of 14 December 1973.

There is no central entity for the registration of works. Therefore, they will have to be registered before different entities, depending on the nature of the work. Musical works will be registered at the School of Music; works of visual art at the School of Beaux-Arts of the Federal University of Rio de Janeiro; and engineering and architectural works at the Federal Counsel of Engineering, Architecture and Agronomy.

Literary works can be registered before the National Library, which, more recently, has also been accepting the registration of all other works, not just those of a literary nature. Given that the structure provided by the National Library is usually considered to be that which is best suited to receive such registrations, it is advisable to attempt to use this system first.

In order to register a work before the National Library, the author must fill in a comprehensive form with his or her qualifications and submit copies of the work and other documentation.

Is copyright registration mandatory?

No. Copyright protection is independent of any registration or formality (section 18), and registration serves as a mere declaration.

What are the fees to apply for a copyright registration?

Currently, the fee charged by the National Library is approximately 80 Brazilian reais per work. The other registration entities mentioned above have similar requirements and fees.

What are the consequences for failure to register a copyrighted work?

There are none, as registration is not mandatory in Brazil.

Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

As a rule, initial ownership of all works will be vested in the individuals who created them (section 11). Therefore, authorship and initial ownership will be one and the same in most cases. There are only two exceptions to this rule: software created under employment and collective works. The latter are created by the initiative, organisation and responsibility of an individual or a legal entity, which publishes the work under its name or mark, and which is consists of the participation of different authors whose contributions merge into an autonomous creation (section 5, item VIII, sub-item h).

Employee and contractor work

May an employer own a copyrighted work made by an employee?

The concepts of commissioned works and works made in the course of employment (or works made-for-hire) do not exist in Brazil. When the current Copyright Act passed through congress (see ‘Update and trends’), the draft provisions dealing with these concepts were excised and not replaced. Therefore, in principle (and unless a given work can be categorised as a collective work), the employer or the commissioner will only become the owner of a work by virtue of an assignment of rights. The only exception to this rule is in the case of software.

Section 4 of the Software Law stipulates that, unless an agreement is made to the contrary, the employer or commissioner of a work will be the exclusive owner of economic rights to a work created by an employee or commissioned person if the work was created in the course of a contractual relationship which is expressly related to research and development of the software; and when the creation of the software is expressly foreseen in the contract or when the nature of the contractual relationship so determines.

Compensation for the creation of the work will be considered to be included in the regular contractual compensation or salary, unless the contract stipulates otherwise (Software Law, section 4, first paragraph).

May a hiring party own a copyrighted work made by an independent contractor?

Except for in the case of the software (see question 23) there is no automatic assignment of copyright by virtue of the hiring relationship, so the assignment has to be expressly agreed in writing.

Joint and collective ownership

May a copyrighted work be co-owned?

Co-authorship is expressly foreseen in the Copyright Act in section 15, and it may apply to both persons and entities. However, it is important to note that merely revising, updating or managing the process of publishing literary, artistic or scientific works does not create co-authorship, unless the contribution goes beyond these concepts and actually results in the creation of an original work (section 15).

Transfer of rights

May rights be transferred?

With the exception of an author’s moral rights, all economic rights can be fully assigned to a third party. In view of the fact that the concept of works made-for-hire does not exist in the Copyright Act, assignment of rights is the norm in the various industries that deal with copyrighted works in Brazil. The economic rights of the authors can be assigned, but this must always be by means of a written instrument. Moral rights, however, cannot be assigned.

Licensing

May rights be licensed?

The comments made concerning assignments also apply to licensing.

Are there compulsory licences? What are they?

There are no compulsory licences in Brazilian copyright legislation.

Are licences administered by performing rights societies? How?

Licences for public performance are administered by performing rights societies.

The public performance right is one of the economic rights and is currently regulated by sections 5, 29 and 31 of the Copyright Act.

Brazil has associations of owners that form the Central Office for the Collection and Distribution of Copyrights (ECAD). ECAD is the national copyright collection agency in Brazil that collects and passes the rights to the associations.

Termination

Is there any provision for the termination of transfers of rights?

If there is no contractual stipulation regarding the term of duration of an assignment, section 49, item III of the Copyright Act says that, the assignment rights will expire after a five-year term.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

An assignment or licensing of rights can be recorded before competent authorities such as the National Library. The authority responsible for the recording may vary according to the nature of the work but, in most of the cases, the recording is performed upon the filing of an application and payment of an official fee.

It is also possible to register a contract before the Registry of Titles and Deeds. This is not mandatory, but can be useful for evidential purposes.

Duration of copyright

Protection start date

When does copyright protection begin?

Protection begins with the creation of the work, with a few exceptions, as described in question 33.

Duration

How long does copyright protection last?

Duration of copyright protection in Brazil

Type of work

Duration

Comments

Literary

Life plus 70 years

Term counted from 1 January of the year following the death of the author, or of the last-surviving co-author in cases of joint authorship

Dramatic

Life plus 70 years

Term counted from 1 January of the year following the death of the author, or of the last-surviving co-author in cases of joint authorship

Musical

Life plus 70 years

Term counted from 1 January of the year following the death of the author, or of the last-surviving co-author in cases of joint authorship

Artistic

Life plus 70 years

Term counted from 1 January of the year following the death of the author, or of the last-surviving co-author in cases of joint authorship

Sound recordings

Fixation plus 70 years

Term counted from 1 January of the year following fixation

Films

Publication plus 70 years

Term counted from 1 January of the year following publication

Typographical arrangements

Life plus 70 years

Term counted from 1 January of the year following the death of the author, or of the last-surviving co-author in cases of joint authorship

Databases

Life plus 70 years

Term counted from 1 January of the year following the death of the author, or of the last-surviving co-author in cases of joint authorship

Photographic

Publication plus 70 years

Term counted from 1 January of the year following publication

Broadcasting

Transmission plus 70 years

Term counted from 1 January of the year following transmission

Software

Publication plus 50 years

Term counted from 1 January of the year following publication (and if there is no publication, the term is counted from creation)

Titles of periodicals

Last issue plus one year

Term counted from the publication of the last issue of the periodical

Titles of annual periodicals

Last issue plus two years

Term counted from the publication of the last issue of the periodical

Performances

Public performance of execution plus 70 years

Term counted from 1 January of the year following publication

Does copyright duration depend on when a particular work was created or published?

Yes. It may vary according to the nature of the work (see table above).

Renewal

Do terms of copyright have to be renewed? How?

No. There is not possibility of renewal.

Government extension of protection term

Has your jurisdiction extended the term of copyright protection?

It has not extended the term of copyright protection since the current copyright law of 1998 was enacted.

Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

In Brazilian law, infringement acts can be considered both civil torts and crimes. The crimes are set out in section 184 of the Criminal Code. Generally, civil torts and crimes have the same features.

The restricted acts (modes of utilisation), which, if performed without the author’s prior consent, constitute acts of infringement, are listed in section 29 of the Copyright Act (see question 7).

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Whoever sells, exposes to sell, hides, acquires, distributes, stocks or uses illegally reproduced works with the purpose of selling, in order to obtain a direct or indirect gain, advantage or profit will be considered as jointly responsible with the infringer. An importer and distributor will also be deemed to be jointly responsible for the infringement when reproduction has been carried out abroad.

Available remedies

What remedies are available against a copyright infringer?

The remedy available is the filing of an indemnification court action with a preliminary injunction to cease the infringement. Section 102 expressly foresees this possibility and says that any owner of rights whose work is fraudulently reproduced, disclosed or used in any other way may apply for the seizure of the copies or originals made or the stoppage of the disclosure, without prejudice to whatever indemnification may be applicable.

It is also possible to deliver cease-and-desist letters, but this is not mandatory.

Limitation period

Is there a time limit for seeking remedies?

One of the biggest problems of the Brazilian Copyright Act is the presidential veto to section 111, which dealt with the statute of limitations concerning filing court actions due to copyright infringement. In the case of a lack of specific regulations, the general rules of the Civil Code are applicable.

According to article 206, paragraph 3, item V, the statute of limitations is three years.

Monetary damages

Are monetary damages available for copyright infringement?

Section 103 of the Copyright Act deals with monetary damages for copyright infringement. Any person who publishes a literary, artistic or scientific work without the authorisation of the owner of the copyright shall forfeit to the latter the copies that are seized and shall pay him or her the price of those that have been sold.

The legislation also contains a rule that may be applied in case it is not possible to determine the exact number of infringing copies. It says that ‘where the number of copies constituting the fraudulent edition is unknown, the offender shall pay the value of 3,000 copies in addition to the copies seized’.

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

As a general rule foreseen in the Civil Procedure Code, attorneys’ fees and court expenses will be due in all court actions, with the exception of the cases in which the party requested and obtained free access to the judiciary system.

Criminal enforcement

Are there criminal copyright provisions? What are they?

Section 184 of the Criminal Code is the only provision that deals with copyright. It provides three different classifications of copyright infringement:

  • if the violation consists of total or partial reproduction, aiming to profit directly or indirectly, by any means or process, from an intellectual work, interpretation, performance or phonogram, without the express permission of the author, performer or producer, as appropriate, or from whom they are represented;
  • if the person, for the purpose of direct or indirect profit, distributes, sells, exposes for sale, rents, introduces into the country, acquires, conceals or has on deposit an original or copy of an intellectual work or phonogram reproduced in violation of copyright, the rights of the performer or the rights of the producer of a phonogram, or who rents the original or a copy of an intellectual work or phonogram, without the express permission of the rights holders or those who represent them; and
  • if the violation consists of offering to the public by cable, fibre optics, satellite, radio waves or any other system that allows the user to select a work or production to receive it at a time and place previously determined by those who make the demand, for profit, directly or indirectly, without the express authorisation, as appropriate, from the author, performer, producer, or those who represent them.
Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

No. Brazilian legislation is still very incipient regarding online infringement and, in particular, regarding online copyright infringement, and there are no specific provisions in the legislation.

Prevention measures

How may copyright infringement be prevented?

Regarding online copyright infringement, an alternative and preventive measure may be reaching agreements with ISPs and search engines or stimulating the federal and state public ministries to reach such an agreement as an attempt to curb the dissemination of such illegal activities on the internet.

Copyright infringement is also avoided through campaigns and police measures aimed at ensuring access to content.

Relationship to foreign rights

International conventions

Which international copyright conventions does your country belong to?

Brazil is a party to the following main international treaties and conventions involving copyright:

  • the Berne Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations - Brazil has been a member since 9 February 1922;
  • the 1971 Paris Revision of the Berne Convention - entered into force on 6 May 1975 by means of Decree No. 75,699;
  • the Universal Copyright Convention - entered into force on 4 July 1960 by means of Decree No. 48,458;
  • the Rome Convention - entered into force on 19 October 1965 by means of Decree No. 57,125;
  • the Phonograms Convention - entered into force on 24 December 1975 by Decree No. 76,906;
  • the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) - entered into force on 30 December 1994 by means of Decree No. 1,355; and
  • the Inter-American Convention on the Rights of the Author in Literary, Scientific and Artistic Works, Washington Revision (1946) - entered into force by means of Decree No. 26,675 of 18 May 1949.

Following ratification before the relevant international bodies, the text of treaties is translated into Portuguese by local diplomatic bodies (Itamaraty) and submitted for presidential approval and sanction by means of a presidential decree, which reproduces the entire text of the treaty making it enforceable as regular legislation.

What obligations are imposed by your country’s membership of international copyright conventions?

Formal reciprocity, that is, granting nationals of other designated countries the same level of protection and rights as extended to one’s own nationals.

Ensuring exclusive rights is also one of the most important international obligations accepted by Brazil, as required by the Berne Convention, as well as fixing limitations following the parameters of section 13 of TRIPS, which says that limitations must be confined to certain special cases, not conflict with a normal exploitation of the work, and not unreasonably prejudice the legitimate interests of the rights holder.