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.