By: Allan Rocha de Souza [1] and Luca Schirru [2]
Brazil began taking its first steps toward AI regulation around 2018. By 2019, new legislative proposals emerged, with a sharper focus on AI; however, none addressed copyright issues until 2020. In 2022, a Special Commission (CJUSBIA) was established to consolidate three major AI bills, resulting in Bill 2338/2023 (‘Brazilian AI Bill’). While the initial draft focused primarily on text and data mining (TDM), the latest 2024 revisions have expanded to include critical copyright issues that are now being debated globally—such as transparency, opt-out mechanisms, and remuneration.
Based on the ‘Rapporteur’s vote supplement,’ we highlight the following issues as particularly relevant: (i) transparency and information on the use of protected works in AI systems’ training (art. 60); (ii) right to research and copyright limitation for text and data mining purposes (TDM) (art. 61); (iii) possibility of opt-out (art. 62); (iv) remuneration for copyright holders (art. 64); and (v) protection of image and voice (art. 66).
On closer examination, we noticed that the AI Bill has noble objectives, such as enhancing remuneration for authors and artists, protecting research, and promoting innovation. However, as it stands and happens too often with legislation, it doesn’t really fulfill its promises. Therefore, it can and should be improved to guarantee its full capacity to shape the relationships and reality it seeks to sort out.
Specifically, regarding research rights, the provisions in Bill 2338/23 deal with it from various angles and in different parts. Some of the issues involving research activities concern: (i) (non-)application of the rules to certain research activities (art. 1, §1, c); (ii) principles, foundations, and promotion of research (art. 2, X; art. 57, II and III); (iii) access to data for research (art. 48, IX); (iv) text and data mining (art. 4, XIII; art. 61); and (v) differentiated treatment of open and free standards and formats (art. 1, §2).
As the Brazilian proposal stands on TDM, it seems extremely important to distinguish, and regulate differently, between (i) research in general, without any direct relation to AI systems; (ii) research with AI, which only uses AI systems as instruments to achieve its goals; (iii) research on AI, which is related to the ongoing development of the field of Computer Science and others; and (iv) research on AI systems, which is essential to address problematic issues that are inherent to the development, training and use of these systems.
Regulating technologies, especially those for which we have yet to fully grasp the scale of their impact, will never be easy, complete, or flawless. For this reason, the initiative and those working on it deserve recognition. In the Brazilian Copyright Institute (IBDAutoral), we addressed the copyright-related issues raised in the Brazilian AI Bill most recent version (the ‘Rapporteur’s vote supplement from 04 July 2024) in the comprehensive study “Artificial Intelligence and Copyright: contributions to the Regulatory debate in Brazil”. The study is a contribution to the public debate not only on the issues briefly introduced above but also on others further developed in the text of the study, which is fully available in Portuguese, with executive summaries in English and Spanish.
[1] Copyright Professor at the Graduation Program on Public Policy, Strategies and Development (PPED/UFRJ) and the Civil Law and Humanities Department of the Federal University of Rio de Janeiro (DDHL/ITR/UFRRJ), Brazil. He also teaches Copyright of the IP Specialization Course at Pontifícia Universidade Católica (PUC-RJ). Scientific Director of the Brazilian Copyright Institute (IBDautoral), a copyright consultant at Fundação Oswaldo Cruz (FIOCRUZ), and a lawyer. Contact: allan@rochadesouza.com – ORCID: 0000-0002-6549-0085.
[2] Executive Director and Researcher at the Brazilian Copyright Institute. Postdoctoral researcher at INCC. Copyright Professor at the Specialization Program on Intellectual Property Law at PUC-RJ. Lawyer. Contact: luca.schirru@ibdautoral.org.br – ORCID: 0000-0002-4706-3776.
