Brazil – the exemption saga continues, and rightholders face the second wave of menaces to their rights

Not long ago, we wrote about some concerning attempts by the Brazilian Political power to menace copyright and collective management (more info here). Among grave concerns, rightholders have fought and won, provisionally, against two Provisional Measures - Medida Provisória (MPs)) that would have had a huge impact for the creative and artistic community: MP 907/19 (here - aimed to exempt hotel rooms and cruise ships from the payment of copyright royalties) and an amendment to MP 948/2020 (here and here - stating that it would no longer be the promoter of live music events to be responsible for obtaining the due licensing from rightholders. Instead, it shifts the responsibility to the artist, that is, the one responsible for acquiring copyright licenses. Moreover, it noted that the amount payable for live shows would be 5% of the artist’s collection for the show). These measures could damage the balance between EU and Brazilian copyright markets, taking into account the provisions of the Infosoc Directive (namely article 3(1)) and Rafael Hotels CJEU ruling and case-law thereto related and, unfortunately, we have to write about this again. The fact was that at the end, MP 907/19 is no longer in place as this was converted into Law: Lei nº 14.002 22/05/2020, minus exempting hotel rooms and cruise ships from the payment of copyright royalties – a battle won. The second MP, that of 948/2020 was also another battle won as the matter of shifting the responsibility does not appear in the final text. 

It seems that enough is not enough, so now another dangerous piece of law, at least for rightholders, is proposed. We are talking about the “new” PL 3968/1997 (here) (PL stands for Projecto lei – Project Law) that basically aims to exempt public bodies and philanthropic entities of paying royalties for the use of musical and literary-musical works at events promoted by them. Having been filed for approval in 1997, it just stayed there for around 20 years, being discussed in several copyright and culture commissions, but never so close to being approved as of today. On July 29th, 2020, some MEPs filed the urgency proceedings for approval of this PL, which means that deep and sector-driven detailed discussions would not be possible, jeopardizing rightholders’ possibility for a balanced discussion.

There is a major concern that such measures, namely exempting all public bodies from paying copyright royalties would violate Brazil’s obligations under the international treaties. So deep and concerning is the measure (the PL) that on August 8th 2020 we saw a massive aggregation movement against such PL, in a letter (here) jointly signed by the Music and AV sector, collective management organizations, Music Publishers (including Indies), AV industry, IP Academics, Gaming industry, TV and Radio Associations, Magazine Publishers and many others, as it was never seen before. In the music field, and according to ECAD, the total loss can reach R$ 431 million (€ 68 million) annually in public performance rights for authors, performers, musicians, record companies, and publishers. 

Also, a resurge of the MP 907/19 but now under PL 3392/2020 (here), menaces again the rightholders sector, as it will again try to exempt hotel rooms and ships cruises from paying copyright. Would be any better way to kill copyright? as we know, exempting public bodies from paying copyright royalties and then exempting the Hotel and Cruise private sectors will diminish copyright. Things can even get worse as another Proposal (PL 2517/2020 -

here) is now attempting to approve the suspension of copyright payments for local broadcasters during the Covid-19 pandemic. The truth is that Brazil is one of the most affected countries in the world by the pandemic and its cultural and artistic sectors are suffering losses that were never felt before. We are facing challenging times and the current turmoil will surely not get better if all the hereinabove mentioned measures are approved. Free access to content will mean, sooner or later, the death of content creators. 

Post written by David Serras Pereira

Licensing and International Manager at Unison. Head of IP at JGSA Law