Brazil: Public Consultation, Management Of Copyright In Brazil And Streaming: An Overview

The public consultation process called by the Culture Ministry (MinC) on the new Ruling on copyright laws in the digital area ends on March 30 of this year. Streaming services such as Spotify, Deezer and Apple Music will be among those with the greatest interest in the result of this consultation. Based on an opinion posted on the MinC site, that must have been made by an individual person but may represent an institutional view, the government will revise its proposed Ruling which is expected to reflect the public interest.

The new Ruling aims to establish specific rules for charging copyright in the digital environment by collective management associations and by the collecting agent. Article 99 of the Copyright Act (Law 9610/1998) already foresees the collection and distribution of copyright payments on musical and literary-musical works and recordings performed in public, thereby leaving unresolved the question of whether the performance of music in a digital environment should be regarded as public.

The Copyright Act states that a public performance refers to any use of music through any means in places where there is a collective movement. The following are considered to be public locations: theaters, cinemas, nightclubs, bars, clubs, stores, commercial and industrial establishments, restaurants, hotels, clinics and hospitals, amongst others. However, there has been a need for the publication of a rule that would include streaming services, for example, since it is not clear whether this kind of performance should, in fact, be regarded as public.

The greatest fear by society as a whole, and some musical content companies, is that automatically regarding a music played by streaming as a public performance will lead to double taxation. This double taxation would occur, for example, when we consider that many radio stations make their programs available through streaming, webcasting or simulcasting on their official websites. Therefore, should these services be regarded as a public performance, a radio station, in theory, would pay for the reproduction of the same recording on the radio and also on the Internet.

The body that is responsible for collecting and distributing copyright payments for public music performances, known locally as Ecad, claims that any kind of digital reproduction should be regarded as a public performance but it also says there should be no double charge as the means of reproduction would be different.

Another nuance that should be noted is the possibility of the author managing his or her own copyright individually. Some of the providers of these music streaming services currently make deals directly with the copyright holder and the artists involved, as is the case with Spotify, and are already paying the artists for the availability and reproduction of their music.

This independent management has been effectively exercised through companies that have been adding digital content, the constant monitoring of the Internet and even legal actions complaining about infringements of their rights. As a result, this public consultation should also discuss the entire current model of managing copyright. This is because many artists who have had their success enhanced by the magnifying mechanism the Internet has become, prefer to manage their career in an individual way and not to depend on the transfer of the copyright payment which, at the end of the day comes from Ecad.

In any case, it is extremely important that all those interested should take part and express their opinion, of all kinds, in the public consultation process on managing copyright in the digital era. After all, accepting this invitation by the Culture Ministry would not only help to highlight the wishes of those involved on an equal basis (that is the aim) but go further as it will show that laws are actually made by a society that is constantly changing.