New copyright law likely to strengthen protection for fanworks and remix culture in Brazil

Written by Tanaqui

(Please note that many of the links lead to web pages in Brazilian Portuguese.)

A revised copyright law to be put before Brazil’s National Congress in the next few months will, if passed in its current form, provide more explicit protection from action by copyright holders for transformative works. The law should also make it legal for fans to break Digital Rights Management (DRM) locks if they are using the DRM-protected content in transformative ways.

Brazil already implicitly takes a more generous approach to “fair dealing” in its copyright regime than many countries. It allows use of short extracts of a work in any context (not just for for education or critique purposes) that does not jeopardise normal commercial exploitation of the work. Item VIII of Article 46 of the draft law aims to express this exemption for “transformative uses” of parts of a work more clearly. In addition, a general clause in Article 46, designed in part to futureproof the law against new technological developments, allows for copyright material to be used as a “creative resource” (“uso como recurso criativo”).

Article 107 of the current draft of the law also makes it legal to break DRM locks when they would prevent use of the DRM-protected work in one of the ways laid out in Article 46. In other words, the law appears to allow for DRM to be broken for transformative uses such as creation of fanvids. This is consistent with the Brazilian courts’ existing practice of levying heavy penalties on rights holders who take measures to prevent “fair dealing” or “fair use”.

The law will replace legislation passed in 1998 and is designed to address the impact of developments in technology since the 1990s and worded so that the courts can apply it to future technologies not specifically covered in its articles. In contrast to the secrecy that has surrounded negotiations over the proposed international Anti-Counterfeiting Trade Agreement (ACTA), the text of the draft law was compiled after a period of public consultation lasting several months.

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