Brazil: The Copyright And The Protection Of Videogames In Brazil

Last Updated: 1 March 2016
Article by Patricia Garcez Garbin

Technological development and the democratization of the internet in recent years in Brazil have enabled the dissemination of audiovisual works of all kinds on the Internet, including the video games, which may be regarded as so, according to the description brought by the local Copyright Act.

If, on one hand, the easy access to the Web by users provided the video game market a large and growing dissemination of its products and, consequently, an exponential intensification of the use and popularity of such games, on the other hand, it has enlarged the illegal commercialization, which has been motivated not only by the immediacy desire of its consumers, but also by the high costs of these products in Brazil.

As an audiovisual content, video games usually comprise many intellectual property elements, such as trademarks, characters, background music, the software source code, forming a work produced in co-authorship, whose patrimonial copyrights are normally owned and attributed to the producer of the final work. Therefore, this work should be respected even when made available online.

Notwithstanding the producers' ownership and the effort in the creation and implementation of protective mechanisms to the content of video games, according to the annual report of the International Intellectual Property Alliance (IIPA), Brazil is the fourth largest market for pirated games including increasingly the online piracy mode.

It is important to highlight that besides the constitutional protection that grants authors the exclusive right to use and publish their works this subject is also regulated by other specific legislation. Law No. 9610/98 (the Copyright Act), in Article 17 § 2, provides the producer the ownership of the economic rights over the entire body of the work, whereas Law No. 9,609 / 98 (Law of software) protects the rights of the holder as to the software source code. On top of that law No. 9,279 / 96, which not only guarantees the protection of its trademarks, but also establishes the crime of unfair competition, which arises when one makes products available through an unauthorized manner directly in retails or via download/streaming links in the Internet.

In addition to the above mentioned legislation, a new Brazilian Law (No. 12,737/2012) provides the classification of computer criminal offenses and sets a sentence of three months to a year to the following practices: to produce, to provide, to distribute, to sell or to disseminate devices or sofwares in order to allow the invasion of computers through an improper violation of security mechanisms; to obtain, to damage or to destroy any data or information without owner's permission; and also to install vulnerabilities to gain undue advantage.

Another recent amendment was brought by the newly approved Internet Civil Landmark (Law No. 12,965 / 2014), which changed the means of identifying users or computer terminals when unlawful contents are made available on the Web. This Legal Institute determines that connection and access records, personal data and the content of private communications will be disclosed and obtained only merely by court order.

The remaining query is whether the legal mechanisms available are sufficient to inhibit the unlawful conduct or not.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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