Copyright

Nowadays there is a lot of talk about copyright, especially on the internet where we have a great spread of photographs, art and original content. Do you know what copyright is? You know what they protect?

Copyright is conferred by law to individuals and legal entities, creators of intellectual works, ensuring that they can enjoy the patrimonial and moral benefits of the exploitation of their creations. The current Copyright Law was drafted in 1998 (law. Nº 9610/98) and provides for the protection of relations between creator and any other individual who uses his artistic, scientific, literary creations, such as books, sculptures, music, paintings and photographs.

For legal purposes, we can divide copyright into two large groups: moral rights and property rights.

Moral rights will guarantee the” authorship of creation ” to the creator or author of the intellectual work, that is, it is because of the moral copyright that we can determine that Faroeste Caboclo was written by Renato Russo, for example. Without this right, it would not be possible to determine the author of the work. This is a non-transferable and inalienable right.

It is the moral rights that give the author the right to change his work, regardless of whether he has already used it or not, and even the right to suspend the work or withdraw it from circulation.

On the other hand, patrimonial rights are those that refer to the economic use of the intellectual work, that is, we are talking about the right to remuneration that the author of a work has for the use of these. Contrary to moral Law, assets can be transferred to third parties and the creator can even demand compensation when his work is used improperly or unauthorized.

If the intellectual work is used without prior authorization from the creator, the person responsible for its unauthorized use will violate copyright rules and his conduct may generate a lawsuit.

It is important to mention that violating copyright is also considered a crime by Brazilian law. The crime appears in Article 184 of the Penal Code and its penalty can reach up to 4 years of imprisonment plus a fine.

Here in Brazil the intellectual work does not need to be registered to have its rights protected; the work receives protection from the moment it materializes. The record, however, serves as the beginning of proof of authorship and, in some cases, to demonstrate who first publicly declared it.

It is also important to differentiate “Copyright” from “Related Rights”. Copyright, as already mentioned, protects the author or authors of a particular work, which can be, for example, a book or a song.

On the other hand, related rights protect all those who participated and were involved in the creation of the work, such as, for example, in the case of music, the rights of the composer of the song, the music producer, the singer, the radio companies, the labels that may air this music on their radio or TV programs.

In the case of music, to be more specific, we also have different types of rights, such as:

Graphic publishing right: related to the commercial exploitation of printed musical scores. They are usually exercised by the authors or their music publishers;

Phonological law: related to the commercial exploitation of songs recorded on material support. Music publishers and record labels;

Right of inclusion or synchronization: related to the authorization for a certain musical work or Phonogram to be part of the soundtrack of a film production, soap operas, advertising plays, television station programming or a theatrical play. When it comes to the use of only the musical work performed live, the management is from the music publisher. When it comes to the use of the Phonogram, the management is the publisher and the label;

Right of public performance: related to the performance of musical works in places of collective frequency, by any means or process. This right is exercised collectively by the Societies of music holders represented by Ecad;

Right of Public Representation: related to the commercial exploitation of theatrical works in places of collective frequency. If these theatrical works have a soundtrack, authorization for the performance of the score must be obtained through Ecad.

It is also important to understand what ECAD is and why our money will end up there. ECAD is the ” Central Office of collection and distribution”, a private institution created by Law No. 5,988/73 and maintained by Federal Law No. 9,610/98, responsible for the collection and distribution of copyrights of songs to their authors, that is, it is through ECAD that the author of a song will receive for his work, as a kind of “royalties”.

The definition of the amount that will be paid to ECAD must consider several factors, such as the place in which the music will be played, the field of activity, its importance to the business, the socio-economic region of the establishment that will play the music and the type of musical use. Commercial stores, radio stations and cinemas, for example, have different charging criteria due to the nature of their activities and their musical use.

The calculation of copyright is made on the basis of the criteria established in the collection regulations and The Price List, which are set by the music associations that run ECAD.

Finally, it is worth noting that here in Brazil, 70 years after the author’s death, his work falls into the public domain. It is from this moment on that the collective begins to enjoy the work commercially freely and free of charge, that is, the patrimonial rights cease to be the monopoly of the author. The counting of this period begins on January 1 of the following year after your death, in accordance with Article 41 of Law No. 9,610/98.

Giovanna Luz Carlos-lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure at Faculdade Damásio De Jesus. Head of the Litigation Department of TM Associados.

Ana Carolina Gracio de Oliveira-lawyer, graduated in law, from Universidade Estadual Paulista “Júlio de Mesquita Filho” (2020), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2021). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Lawyer of the Litigation Department of TM Associados.