Newsletter Edition 10 - January 2020


Ministry of Justice cracks down electronic piracy

The proposals included in the joint Technical Note from the Ministry of Justice and Public Security, the Brazilian Consumer Secretariat and the Coordination of Consumer Safety and Health, from December 26th, promise to further crackdown electronic piracy. Among the suggestions presented “in the context of safe consumption and other measures” are 30 days for e-commerce platforms to present rules that inhibit the sale of illegal products in their environments; institution of a Thematic Study Group on Fighting Against Piracy to establish guidelines that curb the sale of counterfeit products; and the creation of regional groups to fight against products sold at popular fairs, and on electronic websites.

High losses
For Gustavo Piva de Andrade, deputy coordinator of ABPI’s Software, Computing, and Internet Study Committee and director of the Dannemann Siemsen Institute, the initiative is worthwhile and beneficial for the intellectual property protection system. He notes that, despite the growth of the legal streaming industry, illegal sharing of films, music, and sports broadcasts is still massive through various means. Piracy in Brazil, in general, is still a mass phenomenon. According to data from the National Forum Against Piracy and Illegality, in 2018 Brazil lost R$ 155 billion due to trade in illegal products. And annually, for the same reason, it loses 58 thousand jobs. The problem is worldwide: according to the Organization for Economic Cooperation and Development (OECD), international trade of counterfeit products may reach the US$461 billion mark, representing up to 2.5% of world trade.

In Piva de Andrade’s assessment, there is a void in Brazilian legislation that largely accounts for the spread of digital piracy. According to him, the current Brazilian Copyright Law (LDA 9.610/98), clarifies that unauthorized reproduction is illegal, but leaves the responsibility of platforms that reproduce content generated by third parties vague. The Marco Civil (Brazilian Civil Rights Framework for the Internet – Law 12.965/14) in its Art. 19, when creating immunity for the provider of internet applications for the content published by third parties is also controversial, as it does not regulate the responsibility of the platforms properly. “Marco Civil makes it clear that the application provider can only be held responsible for content generated by a third party in the event of a court order. However, the same legal device says that the rule does not apply to copyright”.

Therefore, in theory, in the case of copyright, the current rule is still that of notice & takedown, which had been honored by the jurisprudence before the sanction of Marco Civil, analyzes Piva de Andrade.

Public consultation
In June last year, the Special Secretariat for Culture opened a public consultation for the reform of the LDA (Brazilian Copyright Law), including suggestions for holding Internet application providers accountable for copyright infringements. According to Piva de Andrade, the new legislation needs to be updated to address the new technologies and business models that have emerged in its wake. “In order to seek legal security, the responsibility of providers and the limits of possible fair uses of protected materials are issues that need to be regulated urgently. Not to mention other complex issues, such as 3D printing and artificial intelligence”.