Against the odds, the government of the recently-elected Brazilian President Dilma Roussef didn´t start well for the critics of the Brazilian copyright law and activists of the movement on access to knowledge, who highlights the need to enforce exceptions and limitations on intellectual property, mostly the ones that are already properly foreseen on international agreements.
The reasons for such an estimation are clear: the first draft bill sent to Congress by the Executive was concerned strengthening the enforcement against the so called ‘Piracy Crimes’ and appeared right after the nomination of a Minister of Culture closed linked with the Central Collection and Distribution Office (ECAD) – the main opposition to copyright reform. This possibly represents a step backward for a reform process that has been underway for years.
Filed in January, 5th and numbered as PL 8052/2011 , the draft bill alters the Code of Criminal Procedure willing to speed up the trials of copyright crimes. Proposed measures includes lowering the requirements to retain and store seized goods for evidence and the right to base charges on a sample of goods, rather than a complete itemization of infringing items (a relevant issue when dealing with large quantities of pirated discs, for example).
The text was written by an inter-ministerial committee, the National Council on Combating Piracy and Intellectual Property Crimes (CNCP), composed by both government ministries and private industry groups. Created in 2004 as a response to industry demands and enforcement pressures from the US Trade Representative´s Special 301 Report, the CNCP soon became the main forum for antipiracy efforts in Brazil and the principal forum for developing IP enforcement policy at the federal level, culminating in the release of a National Plan on Combating Piracy in 2005 (and a substantially revised version in 2009). Although Brazil was demoted from the Priority Watch List in 2007 because of such government attentiveness, industry complaints have not stopped.
While the Brazilian government has done considerable efforts in the past decade to comply with US demands, we have seen no evidence—in Brazil or elsewhere for that matter— suggesting that piracy is on the decline and we probably will not. On the contrary, piracy shows every sign of growing as technologies for copying and sharing media become cheaper, more widespread, and more varied. But the content industry insists on repressive measures as a way to delay this sharing tendency, because trying to avoid it represents a few more years of profit using the same traditional business model. As clearly addressed in the Brazilian report of the study Media Piracy in Emerging Countries, available at the Social Science Research Council: ‘we see a debate in which the common front between state and industry actors on hard goods enforcement hides considerable disagreements over how to move forward, with little public enthusiasm for the expansion of ‘repressive measures’ and little industry interest in conversations about business models or access to media.’
The submission of PL 8052/11 as the first bill delivered from Dilma´s administration to the Legislature reflects the industry lobby´s powerful pressure. It is worth mentioning that the draft merges an older draft bill (PL 2729/2003) that had been in Congress since 2003, but had not moved forward since 2009. Submitting a new and similar project is a clear attempt to try to promote the topic further.
The provisions in PL 2729/2003, which has been incorporated by the new proposal, focus in increasing the penalties for copyright infringements. While the current law establishes penalty for copyright violation ranging from 3 months to 1 year of imprisonment, plus fine, the draft establishes sentences from 2 years and 2 months to 4 years, with fines. Penalties on software piracy are also raised and other intellectual property violations in the field of industrial property (trademarks, patents, etc) are also worsened in a ‘TRIPS plus’ manner. Here we will focus only on the analysis of the copyright provisions, once we consider it is also a mistake to treat a copy of protected cultural goods, trademarks and patents with the same misleading concept of piracy.
The first consequence is that augmenting penalties of copyright infringement makes it impossible to reduce the initial sentences to probation or community service. In Brazil only lesser offensive crimes – those with sentences of less than 2 years imprisonment – can be submitted to such alternative penalties. Therefore, if the law changes, no one convicted for copyright violation will be able to have his sentence reduced to community service.
It is worth mentioning that, although many studies have been performed by industry associations, there is none clear evidence that ‘piracy rates’ are proportional to the decrease of consumption of cultural goods. We can not disregard the fact that ‘pirated cultural goods’ are also an effective form, although illegal, that gives access to knowledge to a large portion of the population who are not able to buy such goods at market price. Portion that, by the way, that shouldn´t be accountable on the decrease of consumption rates. Nonetheless, these penalties will be mostly focused toward informal workers that sell CDs and DVDs in a country where unemployment rate represents more than 7% of the labour force. Concerning these two relevant social aspects, it seams unreasonable to worsen penalties focusing only on an uncertain and unproved market loss of an industry unwilling to rethink business models possibilities in the rich context of Information and Communication Technologies (ICT).
A substantial part of Brazilian civil society, academics and artists are trying to push forward a more honest, transparent, and accountable politics of intellectual property, in which policymaking is calibrated to the needs—and realities—of contemporary forms of production and consumption, in balance with artistic and consumers need. In that sense, a public letter to the Ministry of Culture is available to signatures. But, by now, challenges to reach a real change seamed to increase.
