Author: Danilo Fariello

Source: Valor Econômico - São Paulo / SP - 25/06/2010

By Danilo Fariello, from Brasília

Brazil was very close to suspending the payment of royalties to the United States for the exhibition of box office hits like "Avatar". The government's imminent threat to the creators of the Navi people was unrelated to the grudge for the engagement of director James Cameron and actress Sigourney Weaver in the campaign they participated in against the auction of the Belo Monte hydroelectric plant, on the Xingu River (PA). Instead of ideology, the reaction was motivated by very material subsidies from the American government to its cotton producers - which restricted the market of Brazilian producers. Without the cost of copyright, Hollywood films could be shown at affordable prices in film clubs across the country.

Brazil developed over two years a model, unprecedented in the world, of cross retaliation involving artistic rights. The text of Provisional Measure No. 482, which has already been approved, provides, for example, that an internal registration may be required for it to have validity here as a foreign copyright, which has always been valid worldwide, no matter where it was made.

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Big box office hits like “Avatar” can suddenly fail to make a fortune in copyright if retaliation is applied to US government protectionist measures

To assess the impact of these measures, the Ministry of Foreign Affairs asked the Central Bank for a survey and found that, in 2008, the transfer of funds for payment of royalties only for products that come from the US totaled US $ 2,359 billion. The volume was considered relevant enough to be part of the retaliation package.

Negotiations with the US took a new turn, however, with an agreement formalized last week. Brazil agreed to suspend, at least until 2012, retaliatory measures such as an increase in import tariffs on 103 types of American products, authorized by the World Trade Organization (WTO). But retaliation via copyright is now legally provided for in Brazil, and can be applied to any future international negotiations.

Copyright has entered the scene of multilateral agreements with the digital age in the last decade, with the possibility of cross-retaliation - in sectors other than those affected by barriers, tariff or not -, says Marcos Alves de Souza, rights coordinator copyright of the Ministry of Culture. As information began to circulate more fluidly and with less control between countries, which is accompanied by the rise of piracy, concerns about the issue of copyright grew, says Kenneth da Nóbrega, head of the Intellectual Property Division (Dipi) Itamaraty.

In recent years, industrial property has been the target of retaliation requests, for example, in the breach of drug patents. But artistic law was an untouchable theme in this environment of commercial conflicts, although Brazil is not the first country to put it on the foreign agenda.

Nóbrega claims that copyright rules have two pillars. On the one hand, the control and protection of rights. On the other, the exceptions, which allow innovation and the dissemination of knowledge, for example, by the quotations of works such as a remix of a song or a book that advances in a previously defended thesis. “But protection standards originated in the XNUMXth century, and the digital world is in dire need of updates.” And the amounts that circulate to pay copyrights have never been a slight shadow of what they are in these times of the fast internet, which also raises revisions and conflicts.

For these reasons - and due to the existential crisis of publishers and record companies with the spread of piracy - several countries, such as Brazil today, review their copyright laws. Last week, the Brazilian Ministry of Culture opened, for public consultation, the text for the reformulation of the Copyright Law, which will determine, among other aspects, new forms of relationship between authors and intermediaries.

Recently, the European Union, USA, Canada, Australia, among other countries, have discussed or are discussing copyright rules. In Europe, creators, consumers, internet providers and digital rights defenders published a manifest in May defending a system that fosters creativity. For them, exceptions to copyright are the key to enabling legitimate reuse and innovation.

According to a study by Tera Consultants, hired by the European Union in 2008, the region's creative production - which includes software - reached € 560 billion, or 4,5% of all wealth generated in the community. However, precise estimates of the volume of copyright resources in the world are lacking, and any guess is questioned by several institutions. Internally, the Brazilian government has an unofficial estimate of US $ 600 billion in royalties per year in the world, a figure that is growing rapidly.

Debates in multilateral forums have also been opened or resumed to discuss the topic recently. In addition to the WTO, copyright is discussed within the scope of the World Intellectual Property Organization (WIPO). But the US and the European Union are making an outside agreement with other countries, the Anti-Counterfeiting Trade Agreement (Minutes).

At the WTO, the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (Trips) is considered too outdated and far-reaching. Trips is mandatory in rights, but its limits are only optional, varying by country. For the amendment of the agreement, consensus would be required between the parties. For this reason, countries began to negotiate updates in more flexible forums, comments Samuel Barrichello, general coordinator of copyright regulation at the Ministry of Culture.

WIPO, where consensus also prevails, has the most active timetable for multilateral intellectual property negotiations. There, developed and developing countries can take opposite positions, but hold semi-annual meetings, like the one held this week.

It was at Ompi that the “technological protection measure” emerged in 1996, which allows a record company to adopt a system that prevents copying CDs or an Internet service provider to release files to just one computer or veto paper reproduction, anywhere of the world. Brazil did not adhere to this standard, but it suffers its consequences. If someone buys an imported CD, for example, they cannot play it here. Likewise, there are foreign websites that prevent the printing of your pages.

Unaware of WIPO's decisions, the Minutes began to be discussed, in a confidential manner, in June 2008, and its initial draft only became public in April. According to the text, the acceding countries have to implement stricter rules of protection and strengthen intellectual property rights.

Although restricted to some countries, the Minutes' decisions, if they were to become effective in agreement, could affect international trade. Examples: there could be greater control over the music of the European singer whose album is purchased in Brazil or the content of an MP3 player or notebook that a Brazilian tourist carries with him on a trip abroad.

The United States, where the largest record labels and film producers are found, are among the toughest in the negotiation on the subject, imposing stricter copyright restrictions and controls. France recently adopted the most controversial law on the subject, called Hadopi, which is based on the policy known as “three strikes”: if illegal content is downloaded three times, the Internet user can be completely knocked off the network for a while. Around here, it is feared that something like this will become a world rule in Acta.

As a supporter of a less conservative renewal of global rules - which allows holes in copyright for education, innovation, among other purposes - Brazil has defended rights limitations at WIPO. In line with the law proposed internally, which was the public consultation this month, the government wants to promote incentives for the national creative industry and the more flexible dissemination of information, to the detriment of private law restricted to the extreme, comments Souza, from the Ministry of Culture .

But the Brazilian position also raises controversies. Private authors' rights should be preserved as much as possible, as the financial return is their greatest motivation and companies have increasingly supported their assets in intellectual and technological elements, instead of machines and equipment, says Eduardo Dinelli, lawyer specialized in intellectual rights. “There are Brazilian companies that export software to the entire world. That is why it is necessary to balance the interests of the author, the consumer and the State. ” But the lobby of Brazilian companies is relatively weaker than in other countries, where copyright holders have more power in formulating public policies.

In an attempt to relativize this view of copyright as a private institution free of exceptions, Brazil decided to adopt a politically correct flag and, therefore, with little scope for questioning. This week, representatives of the country took to the WIPO meeting, in Geneva, a proposal for a debate schedule to ensure the flexibility of copies of books for audio and Braille versions. Recently, an interruption in the supply of books in the audio version of the Kindle, Amazon's electronic reader, has generated international concern on the subject.

This position is supported by the World Blind Union (WBO), the world association of the blind, and would facilitate access for the disabled to information restricted to those with good visual ability. In addition to being hardly questionable, the proposal would find support in UN policies that aim to offer support to people with any physical disability. "This is not a matter of copyright, but of human rights," says Souza.

For Nóbrega, from Itamaraty, even with the threat of Acta or with the tougher position of developed countries in agreements dealing with copyright, there is now a world environment favorable to the adoption of ever greater limitations to the protection rules, as can be seen in the European manifest. Even large American universities, like Yale and Harvard, already criticize difficulties in reproducing works that would be used as a basis for scientific or technological innovations. "It was realized that there is no simplifying solution to the issue and that, therefore, the restrictions on rights must be well evaluated and discussed, and that they can be questioned internationally", says Nóbrega.