The majority of Brazilians simply do not know much about copyright. The Brazilian population in general knows that copyright exists, but actual copyright rules are not well recognized. When asked to take a guess if a certain act of reproduction is against the law, many Brazilian nationals would probably give a correct answer, but actual knowledge of the law – its text and possible interpretations – is certainly absent as a rule, especially when it comes to the concept of exceptions and limitations.

Since many times not reproducing content makes absolutely no sense – such as taping a TV show for time-shifting – Brazilians keep on breaking the law, and shrug it off as being at worst an inconsequential offense, and at best not an offense at all. In the end, the criterion used to separate copyright infringement from a permitted use is basically its non-commercial or private nature, despite the existence of strict lists of limitations which do not follow the same logic. In other words, the legislation in Brazil simply does not accommodate an idea of “fair use”. All the exceptions and limitations to copyright are based on an exhaustive list, and Brazilian scholars claim that this list must be interpreted restrictively, i.e., judges are not allowed to expand its limits when deciding a case. The consequence would be funny, if it were not so tragic. If someone buys a CD in a store, goes home and copies it to his/her iPod, the person is infringing Brazilian law, because the current exceptions and limitation do not include the possibility to copy a work for private use, by only “excerpts” of a work.

Many other perfectly normal and common uses of copyrighted material are equally forbidden, such as reproduction for time-shifting purposes; freedom of speech is severely affected by provisions such as the parody and paraphrases limitations; research and education take a backseat to industrial interests; and access to culture and knowledge are undermined by overtly strong copyright legislation. With just a few uses of copyrighted material being clearly permitted, the vast majority of possible uses lead straight to copyright infringement, and, on top of that, criminal offense.

At the same time, digital reproduction is here to stay, and so is content distribution through the Internet. Collaborative authorship, commons-based peer production, free software and open content licensing are on the rise despite technological and legal threats, and there is no way that anyone can remain oblivious to change.

Exceptions and limitations are somehow thought of as a concession to the public, given as an expression of the author’s generosity, and not as a matter of sheer necessity, logically derived from copyright’s nature itself. The fact that the Brazilian system is based on the "author’s rights" tradition, instead of the US copyright model, immensely helps the protection of industry through the proxy of authorship, by centering the entire universe of copyright law on the figure of the mythical, romantic author/creator – who can, despite the moral rights being non-waivable, be replaced by any corporate agent through contractual means. Moral rights, it must be said, are much hyped by Brazilian literature, but are also usually waived through contracts, even though not explicitly, by means of loopholes such as the ambiguous state of rights over derived works, which are, in the end, both moral and economic rights.

Yet, despite this being a new phenomenon, the normative basis for file sharing culture, in Brazil and elsewhere, is not exactly recent: practices involving the sharing of cultural goods, whether they imply reproduction or not, are far from being novel. Be it lending a book, making someone a mixtape, or telling a campfire story, people are used to sharing information, and have been doing so forever. “Culture is public”, as the anthropologist Clifford Geertz puts it, “because meaning is.” When one takes that into account, it is obvious that if technologies which allow for easy reproduction of content are accessible, cultural transmission through reproduction will inevitably ensue, regardless of copyright law, which, when historical origins are considered, is purely destined to regulate trade and competition, and not non-commercial modes of sharing.

Despite that, parallel copyright’s “rights” of non-commercial use and distribution are still not conceptualized as a problem related to exceptions and limitations to copyright law – which would be the most obvious approach to tackling them. Users of protected content are beginning to get in touch with copyright law, and trying to argue in the defense of practices of non-commercial reproduction and distribution in order to sustain the sharing ethos, but lack the conceptual repertoire that is necessary for rational public discourse over information policy matters. The industry version of copyright law, the same version that was written into legal text and was immunized from policy considerations through the effort of legal scholarship, finally shows signs of being put into question, and information policy considerations are now being placed where they always belonged: at the center of public discourse, and within reach of the ordinary citizen. But at the same time, there is still a lot of catching up to do, and it will be a while until copyright matters can be properly discussed, and until industry biases can be completely abandoned. Even so, there is reason for optimism: if questions such as “What is copyright for, anyway?” and “What should my rights as a user of copyrighted content be?” start to appear in everyday conversations, there is still hope for balance to be struck someday.

In sum, exceptions and limitations in Brazilian copyright law are inadequate on many accounts. They are excessively restrictive and anachronistic, in some cases incoherent, and offer no opportunity for balance through interpretation. To make things worse, they are often misused by industry, instead of being seized by the public as a necessary component of copyright law and made into rights of use and access to information, in the broadest sense of the word. Copyright law is not a traditional part of Brazilian public discourse, and largely industry-dominated scholarship has taken control of legal interpretation, offering no opportunity for dissent, with heavy use of strong natural rights-based argumentation which considers intellectual property to be boundless and superior to any other interest. As a result, copyright law is never dealt with as a matter of policy, and exceptions and limitations fail to attend users’ needs, contradict Brazil’s developmental goals, and are completely hostile to the current technological context and the opportunities it might offer.

But even though the scenario is bleak, the disturbances caused by the Internet and digital technologies have taken copyright out of the grasp of a reduced number of industry actors and turned it into the focus of many people’s attentions. Industry discourse and traditional copyright scholarship will have to deal with increased academic and popular reaction to maximalist approaches to legislation and legal interpretation, and enforcement of copyright law will continue to face many challenges, no matter how substantial protection is, and no matter how laws are construed.

While the outcome of these battles is not easy to predict, at least copyright is now finally on its way to being properly considered as a policy issue in Brazil, and with that comes the question of what an ideal system of exceptions and limitations would be. Whether or not the country actually ends up with a balanced system of exceptions and limitations within its copyright law, the relevance of alternative licensing models should be noted for countries like Brazil and others with serious educational problems, where access to knowledge is still a privilege of the most affluent citizens, resulting in extremely negative impacts on the quality of life and the fundamental rights of a large number of people.

This article contains excerpts from Exceptions and Limitations in Brazilian Copyright Law, a paper written by Pedro Mizukami in partnership with the Center for Technology and Society at the FGV Law School in Rio de Janeiro for the Yale Information Society Project, CC-BY-NC.

This article was originally published by Paula Martini at the iCommons website.