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.