Although Brazilian Copyright Law was passed in 1998, it is already considered old. As we all know, the internet challenges copyright systems all over the world, demanding updates in a structure that was forged and developed between the XVIII and XX centuries. 

Copyright was mainly created to assure authors would receive adequate financial compensation for the public use of their works, especially when commercial purposes were at stake. However, because the origin of current international Copyright structure is based on the Berne Convention, signed in 1886, its principles can barely survive the new digital era in which we live.

Being honest, everything worked fine in the copyright world for over a century. The Cultural industry had as one of its pillars copy or reproduction control, which mean that when a book was published and 1,000 copies made available, person number 1,001 would no longer get a copy. This person could make a copy herself, but it would be expensive, demanding and, very likely, of dubious quality. The same system applied for movies. You could either watch a movie at cinemas or you would have to wait until its release on home video or, worse, to be shown on television. We were all chained to physical goods and strict schedules we had no influence over. 

 Then came the internet and with it, massive changes. We became free from material copies and third parties’ timetables. We could have access to any movie, music and text, at any given time and for a much lower price (sometimes even free of charge). It was only logical to believe that copyright, in its old standards, could not survive these changes. And it turned out it couldn’t indeed. For this reason, if you access UNESCO’s copyright law database, you will see that many countries have recently adjusted their laws in order to comply with XXI Century requirements.

 But not Brazil. Except for an update related to collecting societies (which was an extremely relevant update, by the way), Brazilian copyright law remains the same, with its old problems and limitations. For instance, except for short passages (whatever that might mean), Brazilian law forbids any kind of private copies (which seems counterintuitive, given that copyright should concern the public use of works, and not personal use). Moreover, the law allows, for educational purposes, only the reproduction of musical and theatrical works (not movies); does not explicitly permit copies for preservation purposes or from out-of-print works; and remixes, something intrinsically connected to the internet, are arguably illegal – at least in theory.  

For all these reasons – and several others we could appoint – the Brazilian Ministry of Culture decided to promote a profound reform in Brazilian copyright law between 2007 and 2010, beginning with many face-to-face debates and then followed by online discussion. This took place when Brazil’s Internet Bill of Rights (the Marco Civil da Internet) was under public appreciation, so the Ministry of Culture decided to use the same tools in order to achieve its purposes.

In 2010, the Ministry of Culture published the first draft of the bill of law, and any interested party could comment on its terms. There were over 8,000 comments that helped build the final wording. This last version was submitted on December 2010, to another Ministry, that would be responsible for preparing the definitive text for appreciation of the National Congress.

However, everything changed. President Lula managed to elect his successor, Dilma Rousseff, but she appointed as a new Minister of Culture a person who was not very comfortable with the law changes. The new Minister decided to open the discussion again, so a second round took place in 2011, with the difference that this time comments were not public and the debate lacked in transparency. 

To make a very long story short enough to fit the size of a blog post, I can say that nothing has changed since then (except for the modification mentioned above related to the collecting societies).  The final bill remained forever at the Ministry, never getting to National Congress.  

This is the reason for which copyright isn’t mentioned or covered by our Internet Bill of Rights when defining intermediaries’ liability. There is only a general rule stating that:

Art. 19. In order to ensure freedom of expression and to prevent censorship, internet application providers may only be held civilly liable for damage resulting from content generated by third parties if after specific judicial order the provider fails to take action to make the content identified as offensive unavailable on its service by the stipulated deadline, subject to the technical limitations of its service and any legal provisions to the contrary. 

However, there are two exceptions to this rule. The first is the so-called revenge porn. The second relates to copyright:

§2. This article will apply to violations of copyright and related rights

only when specific legislation to that effect is adopted; the particular, when adopted, must respect the freedom of expression and other guarantees provided for in article 5 of the Federal Constitution 

By the time the Marco Civil was under discussion, it was hard to get to an agreement about what should be the intermediaries’ liability when copyright was concerned. However, because the copyright law was also the object of an extensive debate, the right thing to do seemed to let this particular point for the copyright law reform. Nobody could imagine that no substantial reform was ahead.

For this reason, intermediaries’ liability regarding copyright is uncertain. Are intermediaries liable after a private notice or only after a Court decision? If all the reasons mentioned weren’t enough, a huge copyright reform is greatly needed in order for us to finally overcome this uncertainty. However, political life in Brazil has recently proved that everything can get worse. Moreover, with the low level of discussion at the current Brazilian National Congress, waiting seems the most reasonable thing to do. Let’s just hope it is not for too long.