Production photo of the film Banana da Terra (1939), starring Carmen Miranda. According to current copyright legislation in Brazil, this photo (and the film) entered the public domain 70 years after 1 January 1940; that is, in 2010.

The copyright law of Brazil is primarily based on Law Nº9,610 from 19 February 1998.[1] Additionally, Brazil has signed the Berne Convention and the TRIPS Agreement.

History

Imperial period

Brazil's first constitution, the Imperial Constitution of 1824, did not deal with creative works, and instead only mentioned patents:[2]

Os inventores terão a propriedade das suas descobertas, ou das suas producções. A Lei lhes assegurará um privilegio exclusivo temporario, ou lhes remunerará em resarcimento da perda, que hajam de soffrer pela vulgarisação.

Inventors will have ownership of their discoveries, or their productions. The Law will assure them an exclusive temporary privilege, or compensate them on losses they may suffer through dissemination.[a]

— Imperial Constitution 1824, Art. 179. XXVI

The first legal document to deal with the protection of creative works in Brazil was the Law of 11 August 1827, which gave jurist course professors exclusive publication rights to their course's compendia for the 10 years following their approval by the government.[3]

However, the general protection of creative works in Brazil first came from article 261 of the Criminal Code of 1830.[4] It protected any text ("or stamp") which had been written, composed or translated by Brazilian citizens, for the lifetime of the author, plus 10 years if they had any heirs. If such works were made by corporations, the protection lasted for 10 years after publication.[5]

Photograph taken on 17 May 1888 depicting a mass celebrating the abolition of slavery in Brazil. As the Brazilian copyright law of the time did not consider artworks – much less photography, which was still in its infancy – the reproduction of such a photo would not be illegal.

While it was a step in the direction of an all-encompassing copyright protection, the Code of 1830 protected only written works, not any other kind of artwork; this and other issues would be criticized by scholars in the decades that followed its enactment.[6]

For example, the then-barely invented photographs were also not considered for the 1830 text, and would likely not be illegal to reproduce in the following years as the technology developed.[citation needed] However, one must also consider the relative difficulty it would have been, in the mid to late 19th century, to copy or otherwise reproduce (a potentially single physical copy of) a photograph without authorization from the owner.

First Republic

Following the Proclamation of the Republic in 1889, copyright protections were expanded to encompass any type of artistic work – and no longer only literary works – in the Penal Code of 1890. The duration of copyright wasn't changed; it still lasted for the lifetime of the author, plus 10 years if they had any heirs.[7]

In 1891, copyright would finally become constitutional, in the first constitution of the Brazilian republic. That, in itself, was a landmark in terms of Brazilian copyright protections.[8] The law had a clear separation of patents and copyright, and delegated the duration of copyright to the Penal Code – as such, it remained as lifetime of the author, plus 10 years if there were heirs.

Aos autores de obras literárias e artísticas é garantido o direito exclusivo de reproduzi-las, pela imprensa ou por qualquer outro processo mecânico. Os herdeiros dos autores gozarão desse direito pelo tempo que a lei determinar.

To the authors of literary and artistic works is guaranteed the exclusive right to reproduce them, by press or any other mechanical process. Their heirs will enjoy that right for as long as the law determines.

— First Republic Constitution 1891, Art. 72 § 26
Because the 1898 law set a time limit for the registration of works to acquire copyrights, any work created before 1897 would be uncopyrightable. This is the case of this portrait illustration of Prudente de Morais, third president of Brazil, by Gustavo Dall'Ara [pt], created in 1896.

On 1 August 1898, Law Nº496 was promulgated, the first to explicitly mention "author's rights".[9] It protected an author's right to reproduce (or authorize the reproduction of) their work – be it "literary, scientific or artistic" – through "publication, translation, representation or execution of any other kind".[10] Counting from 1 January of the year of publication, the protection lasted 50 years for exact reproductions (i.e. exact copies), but it would only protect for 10 years the exclusive right to translate or otherwise represent the work in a non-reproductive way.[11]

For dead authors, owners of a posthumous work benefit from the author's rights, lasting 50 years counting from the date of death of the author.[12] Author's rights of anonymous or pseudonym works belong to the work's editor, but if the author is found or discovered, they obtain the rights.[13]

Crucially, this protection wasn't automatic: it was required that works be submitted to the National Library of Brazil until 31 December of the year following the publication. For printed works, photographs and lithographs, the submission required "a copy in perfect conservation status"; for paintings, drawings, sculptures or other, a "perfectly clear" photograph of the work.[14] A side effect of this time limit is that it would have made works created before 1897 uncopyrightable, as they would need to have been registered before the law was even promulgated.[citation needed]

Current copyright terms

For works where the author is known, copyright lasts for the lifetime of the author plus 70 years, counting from 1 January of the subsequent year after their death.[15]

If the author is unknown or anonymous, any unpublished work is in the public domain.[16] For published works where the author is anonymous or a pseudonym, the publishing party retains copyright for 70 years after publication, again counting from 1 January of the subsequent year.[17][better source needed] If the author is found or discovered before the work's copyright expires, it reverts to being lifetime plus 70 years.

Audiovisual works (such as films) and photographs are protected for 70 years after their publication, counting from 1 January of the subsequent year.[18]

Apart from expired copyright and unknown authors, works in the public domain include those from authors who have died and left no successors.[19]

Limitations

However, copyright is not all-encompassing in Brazil – it has some limitations. The following are not considered copyright infringements:[20]

Paraphrasing and parodying are also allowed, given that they are neither faithful reproductions of the originating work, nor disparaging to it.[21] Additionally, Brazilian law has a freedom of panorama clause, concerning permanently displayed works in the public space. It allows for their reproduction through paintings, drawings, photographs and "audiovisual procedures".[22]

Fair dealing

Brazilian copyright law does not refer to its self-imposed limitations as "fair dealing" (or "fair use"), although some of them – such as the right to quote – could be considered as such. That said, the law has a specific clause preventing what is most commonly referred to, usually in online spaces, as "fair use":

Ninguém pode reproduzir obra que não pertença ao domínio público, a pretexto de anotá-la, comentá-la ou melhorá-la, sem permissão do autor. Os comentários ou anotações poderão ser publicados separadamente.

No one may reproduce any work that is not in the public domain, on the pretext of annotating, commentating or improving it, without permission from the author. The commentary or annotations may be published separately.

— Law 9.610 1998, Art. 33

Notes

  1. ^ "Dissemination" is an imperfect translation; the original text's intent is of patent infringement

References

  1. ^ Law 9.610 (1998).
  2. ^ Dal Pizzol (2018), p. 314.
  3. ^ Dal Pizzol (2018), pp. 314–315.
  4. ^ Dal Pizzol (2018), p. 316.
  5. ^ Código Criminal (1830), Art. 261.
  6. ^ Dal Pizzol (2018), p. 317.
  7. ^ Dal Pizzol (2018), p. 318.
  8. ^ Dal Pizzol (2018), pp. 318–319.
  9. ^ Dal Pizzol (2018), p. 319.
  10. ^ Law 496 (1898), Art. 1.
  11. ^ Law 496 (1898), Art. 3.
  12. ^ Law 496 (1898), Art. 8.
  13. ^ Law 496 (1898), Art. 11.
  14. ^ Law 496 (1898), Art. 13.
  15. ^ Law 9.610 (1998), Art. 41.
  16. ^ Law 9.610 (1998), Art. 45 (II).
  17. ^ Law 9.610 (1998), Art. 43.
  18. ^ Law 9.610 (1998), Art. 44.
  19. ^ Law 9.610 (1998), Art. 45 (I).
  20. ^ Law 9.610 (1998), Art. 46.
  21. ^ Law 9.610 (1998), Art. 47.
  22. ^ Law 9.610 (1998), Art. 48.

Bibliography

External links


Copyright law by country
Authority control databases: National
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