Volume 5, Number 24, Page 1
Brazil’s New Copyright and Computer Software Law
by Michael Ugolini
On February 20, 1998, Brazil enacted a new copyright law. In defining the works protected, the new law does not make any radical changes to the law which it repealed, but merely uses language which more closely tracks that of the Berne Convention for the Protection of Literary and Artistic Works. It protects any intellectual creation expressed in any way, including translations and adaptations of works in the public domain, fixed in any form, tangible or intangible, known or invented, such as:
1. texts of literary, artistic or scientific works;
2. speeches, sermons and similar works;
3. dramatic works and dramatic-musical comedies;
4. choreographic works and pantomimes, if fixed in a writing or other form;
5. musical compositions, with or without words;
6. audiovisual works, with or without sound, and cinematographic works;
7. photographic works and those produced by processes analogous to photography;
8. works of drawing, painting, engraving, sculpture, lithography, and kinetic art;
9. geographic illustrations, maps, and similar works;
10. designs, sketches, and industrial art in the fields of geography, engineering, topography, architecture, and science;
11. adaptations, translations and other transformations of original works, involving new intellectual creation;
12. computer programs; and,
13. collections or compilations, anthologies, encyclopedias, dictionaries, databases and other works, if the selection or organization of the material involves new intellectual creation.
The economic rights of the author protected by the act are the exclusive right to exploit or license the exploitation of the protected work in any form, including any translation or adaptation of the original. The author also has the exclusive right to reproduce the work and the exclusive right to publicly communicate the work in any form, including the right of recitation, representation and performance, the right of broadcasting and of communicating the work by means of sound or visual recording.
The moral rights of the author protected by the act include the right to be recognized as the author of the work, the right to object to modifications or to other acts which harm the author's reputation or honor, and the right to remove the work from public circulation.
The author's economic rights are protected for a period during his life plus 70 years, while moral rights are inalienable and may not be renounced. In the case of anonymous or pseudonymous works, and audiovisual or photographic works, the period of protection under the new law is 70 years from January 1 of the year following the year of publication.
Registration is not required for protection. Authors, may however, register their works, as appropriate, in the Brazilian National Library, the School of Music or School of Fine Arts of the Federal University of Rio De Janeiro, the National Institute of Cinema, or the Federal Council of Engineering, Architecture and Agronomy.
As for "fair use," the following, among others, do not infringe upon the author's rights:
1. The reproduction of protected works in news articles and reviews appearing in newspapers or periodicals, with attribution of the source of the work and identity of the author;
2. The reproduction of speeches made at public meetings of any nature, in newspapers or periodicals;
3. The reproduction of parts of protected works if done for private use and without the intention of profit;
4. The reproduction of parts of protected works in books, periodicals, magazines or other media, for purposes of study and comment, with attribution of the source of the work and identity of the author;
The new law gives the copyright holder a cause of action for damages against anyone who engages in the unauthorized copying of a protected work, measured by the price received for the copies he has sold. If the number of copies sold cannot be determined, the infringer must pay the copyright owner the value of 3000 copies beyond the number of copies seized. In addition, copyright owners have the right to have infringing works seized, and any further distribution enjoined. Any illegal copies may be destroyed, as may be the instruments of their manufacture. If the infringement concerns a work the rights to which have been transferred to a copyright association (which fixes and collects the royalty payments), the infringer must pay damages measured at 20 times the amount of the royalty.
Brazil's New Computer Software Law
On February 19, 1998, Brazil enacted a new computer software law. Brazil's old computer software copyright law arguably violated both the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as well as the Berne Convention for the Protection of Literary and Artistic Works, because it was vague concerning protection for source code, and protected software for only 25 years rather than the 50 year term required by the Berne Convention. The new law defines computer software as:
"the expression of an organized set of instructions, in natural or codified language, fixed in any tangible medium of expression, which enables machines, devices, instruments and peripheral equipment to process information, in a digital or an analogous form, or to function for particular purposes."
Authors of computer programs are given limited moral rights, limited to the right to be recognized as the author of the work and the right to object to unauthorized alterations which harm the author's reputation or honor. Protection is provided for a period of 50 years from creation or publication, independently of registration. Copyright owners may register their software with Brazil's National Institute of Industrial Property.
As to "fair use," the following do not violate the rights of the owner of a computer software copyright:
1. The reproduction of a copy of the copyrighted program which has been legally acquired, and which is essential to the proper use of the program;
2. The partial quotation of the copyrighted program for educational purposes, provided that the program and its author are identified;
3. The similarity of the copyrighted program to another program, provided that the similarity involves the protected program's functional features, or results from compliance with laws, technical standards, or limitations of alternative forms for its expression; and
4. The integration of the protected software and its basic features into an application or operating system which is technically indispensable to the user's needs, provided it is used exclusively by whoever undertook the integration
The new law contains several novel provisions for the protection of users. First, publishers of computer software programs must indicate in the licensing agreement or accompanying documentation the period during which the program will be valid. Second, during the stated period of validity, the publisher or distributor is required to provide technical support in Brazil to users of the program. Finally, if the publisher withdraws a program from commercial circulation during the stated period of validity, it must provide indemnity for any harm caused to users of the program.
The new law provides that software copyright owners may bring civil actions for infringement, and may be granted injunctions or damages. Courts have the power to grant preliminary relief enjoining infringement or ordering the seizure of infringing copies.
A significant change has been made to the judicial secrecy provision of the old law, which permitted software copyright infringement actions to be heard "in camera." The new law provides that the judge may conduct in camera proceedings only to prevent the disclosure of confidential information, and not to protect infringers from public embarrassment.
Both new laws are silent about the availability of border measures. These are procedures required under the TRIPS Agreement which would permit a right holder who suspects that the importation of pirated copyright goods may take place, to lodge an application with administrative or judicial authorities for the suspension by the customs authorities of release into free circulation of such goods. This is an important right, because much pirated material enters Brazil from across the Paraguayan border, and once entered, can be difficult for the holder of the copyright to locate. However, members of the World Trade Organization are not obligated to apply the TRIPS Agreement before one year after the WTO Agreement is in effect in that member country. Developing countries and countries in the process of transformation from centrally planned into market, free-enterprise economies are entitled to delay their obligations for a further period of four years. Since the WTO Agreement went into effect in Brazil on January 1, 1995, and Brazil is a developing country, Brazil is not obligated to apply the TRIPS Agreement until January 1, 2000. n
© 1998 By Michael A. Ugolini All rights reserved. Used by permission of the author.
Michael Ugolini is an attorney with International Trade Advisors, an association of attorneys concentrating in the field of U.S. and international intellectual property, trade and investment, with offices in Springfield, Massachusetts and Hartford, Connecticut.
