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Brazil's Approach on Anti-Circumvention: Penalties For Hindering Fair Dealing

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Friday July 09, 2010

The Supreme Court of Canada has been very active on copyright issues over the past decade with cases such as Theberge, CCH, and Tariff 22.  In the Theberge case, Justice Binnie identifed a crucial point when it comes to striking the right balance on copyright, stating

"The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.  In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them."

Brazil recently unveiled its much anticipated copyright reform proposal and it provides a statutory example of applying this principle.  Article 107 includes an interesting balance to legal protection for digital locks. 

Not only does the proposal permit circumvention for fair dealing and public domain purposes, but it establishes equivalent penalties for hindering or preventing the users from exercising their fair dealing rights.  In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago - over-protection is just as harmful as under-protection.

§1º. The same sanction applies, without prejudice to other sanctions set forth by law, to whom, through whatever means:

a)     hinders or prevents the uses allowed by arts. 46, 47 and 48 of this Act [which addresses limitations to copyright including fair dealing]; or

b)     hinders or prevents the free use of works, broadcast transmissions and phonograms which have fallen into the public domain.
Comments (30)add comment

David said:

@ Dr. Geist
It would be worth mentioning if Brazil is considered WIPO-compliant (and if not, why?)
July 09, 2010

Marion said:

I love it when Brazil gets all reasonable on me. :-)
I'm reading throught he consolidated proposal, and it seems to be quite reasonable.
July 09, 2010

Brian said:

we definitely don't have Brazil's puppets up in Ottawa
It's clear that our puppets up there in Ottawa have the hands of the US up their arses, not the hands of Brazil.
July 09, 2010

Crockett said:

The American media lobby are a product of human avarice scaled up to the corporate level. Throw in graft, pride, extravagance and few other deadly sins and any hope of reasonableness on their part seems to have flown out the window. It is good to see a country that is somewhat removed from the economic and political tendrils of the USA show some backbone. I fear if Canada can live up to the example.
July 09, 2010

Russell McOrmond said:

1996 WIPO treaties conform to traditional definition of copyright.

Why wouldn't Brazil be WIPO compliant? The treaties tied legal protection for TPMs to activities which were already infringing under existing WIPO treaties. http://BillC32.ca/faq

Canada implementing DMCA language ("access controls", prohibitions against devices/etc) needs to be understood as being entirely separate from WIPO treaty compliance. I suspect Brazil is in closer compliance than the USA or Canada would be under Bill C-32.
July 09, 2010

Rational Minded said:

Interesting wording
That's really interesting wording. If you combine it with the proposed separation of commercial and non-commercial activity, I think that's a law I could live with. Forget to unlock the PDF that holds your thesis: non-commercial fine, with retroactive indemnity; deliberately lock Blueray disks to force people to buy a separate iPod version: commercial fine starting at $50K per instance.
July 09, 2010

jv said:

Not downloading.
It isn't new news but it gets spelled out in leaked black and white. There is a good story up on how movies manage to loose all the money that the studios claim. The big surprise or not is that it has nothing to do with people downloading and every thing to do with fraud. I'm sure they remember to mention that when they are talking to the politicians.


July 09, 2010

cndcitizen said:

Hollydirt Accounting
I don't know how this applies to copyright or C-32 and I have no insider knowledge of accounting practices, being a former GM at a theatre, movie distributors would insure $20k (at the time) prints for the movies for $100 bucks. These movies would last about 6-10 weeks and have to be replaced if it ran longer. The cost of the actual physical media was a lot for these films. In the 80's I asked why they didn't do it digitally and even in the 90s they were still discussing if movies were shipped on 20 minute reals or 60 minute reals to avoid damage during splicing..oh I was also a projectionist at one point.

The Distributors would force theatre companies to sign aggreements for % of gross profits prior to seeing the movie. I remeber the negotiations for Godzilla. They wanted a unheard of 80% cut of the gross profit. Meaning that with taxes and stuff the movie theatres would
lose money showing the film but make up for that loss from popcorn sales. Since the ushers enforced a no outside food policy, this sometimes worked. If you got rid ot the "distributors" and made deals directly with the production companies, for realistic prices then things might change, I used to have free access to any theatre anywhere and I hardly attended unless I put a show on for the staff. Now days, I will rent maybe one movie or two a month if something really good has been mentioned.

All in all, all parts of the entertainment industry have creative practices and this isn't really new. The end theatres ONLY make their money from confection and other sales and the loss leader is the actual movie.

No wonder hollydirt is dying.

Captcha - Lot Collected
July 09, 2010

Crockett said:

Let them eat cake
@JV "here is a good story up on how movies manage to loose all the money that the studios claim. The big surprise or not is that it has nothing to do with people downloading and every thing to do with fraud."

Wow, now who exactly are the pirates again? And they wonder why people don't feel bad about file sharing? I mean give me a break!

I'll say it again and again, it's not the public that are fleecing the artists (they actually appreciate and support good talent), it's the RIAA/MPAA and the like. With electronic distribution, artists don't need them so much anymore and the distributors are browning their pants. I say get rid of the greedy grubbers and be done with it... www.youtube.com/watch?v=cYEpJb8F4Uk
July 09, 2010

Crockett said:

Irony is a dish best served with dip
With it coming out just how crooked the media distributors are, I think it's kind of amusing that fair use advocates are more on the side of artists than the people whom pretend to represent them.
July 09, 2010

Mark said:

Although I *STRONGLY* think that circumvention should be permitted for fair dealing purposes, I do not know if I could agree with the remainder of this sort of attempt to balance copyright.

In particular, I think that creators should be allowed to put protections on their works, if they so choose, to attempt to discourage people from copying the work if that is what they desire, although I do not think that such discouragement should be backed by force of law. I'm also a bit skeptical of the notion of exemptions for public domain purposes, because I am concerned that one could then potentially wholly devalue a copyrighted work by freely distributing while it is still supposed to be protected by copyright simply by claiming that one is doing so under the public domain exemption. I fear that this would allow bigger companies to assume free distribution of a smaller competitors works without compensating the creator of the work in an active attempt to starve out the competition.
July 09, 2010

cndcitizen said:

Public Domain
@Mark - I would need an expert in public domain but isn't public domain something that the creator put themselve in or that stuff created with public money? If you create a work it is copyrighted by yourself and doesn't go into public domain because a media giant wants it. You have to reliquish those copyrights.

That being said, if the crown corporations want to protect stuff paid by the tax payer then that is a different story, I guess contracts and contractors should look the contract to see whom owns the final IP for something that is commisioned by the tax payer. If the government paid to have a survey of the red sands by a private corporation to see if there is a potential for oil then that resulting work should be public domain and not for the company to resell their results to all other parties.

But Copyright is a tricky business once you get software code (which is copyright not patent) involved.

I own copyright and patent on a technology but the courts ruled that since there was a minor modification to the code it was no longer my right/patent. They had to attribute that to it but in Canada that means nothing. So the whole farce is that if you have the money you can go ahead and lawyer people into a settlment (ALA RIM)

lol - Aerospace pinching - so true
July 09, 2010

cndcitizen said:

Googled my patent and it seems to have disapeared...strange.

I guess I was hit with captcha - buckshot my
July 09, 2010

Ryan Oram said:

Real Copyright Reform
I agree with the steps Brazil is taking.

I see no merit to the idea that personal copies are a violation of the artist's copyright as no profit is involved. This is further complicated by the fact that all digital data can be copied 1-to-1, making unauthorized reproduction trivial and hard to discourage. Digital locks are not a solution as they can be trivially broken in virtually all cases.

Reformed copyright laws should instead focus on disallowing unauthorized *republication* of the artist's work, as this is much easier to enforce as it signifies intent to deny the artist compensation for their work.
July 09, 2010

Thom said:

Internet User
What's pathetic about this, is that the US doesn't have one of these in the works, and isn't considering it, no there about to jump overboard.
July 10, 2010

JJ said:

I (and probably many others) suggested this last summer in the copyright consultation. I suggested outlawing DRM in such a way that, to provide fair dealing rights, the companies would either be legally obliged to provide non-DRM'd copies or to provide the keys and algorithms to remove the DRM in a useful way.

This sounds like a *slightly* watered down version of that -- though I would be perfectly happy with this version too.
July 10, 2010

Eo Nomine said:

Interesting that people are so supportive of this proposed legislation... you do realize that imposing indeterminate liability for implementing TPMs that do not track the contours of copyright law *exactly* effectively kills business models based on closed, proprietary systems, right? No TPM can know when someone is trying to make a copy for legitimate purposes vs illegitimate purposes, and rather than accept liability for failing to permit "fair dealing" and other exceptions (like back-up copies), most consumer electronics companies and media producers that use TPMs will simply not distribute their products into jurisdictions with such a regime. So bye-bye iPhone, iPod, iPad, Xbox, PS3, Wii, DVD Players, Blu-Ray Players... moreover, most digital distribution platforms and many streaming services would also be caught, and access to those platforms would probably be locked out as well.

Brazil may not care about this as they already impose *very* high protectionist tariffs on imported consumer electronics and other media (as high as 60 percent!!!), so Apple and many other companies don't sell into Brazil (see http://www.ifoapplestore.com/db/2010/03 ... h-tariffs/ discussing why Apple isn't planning on opening a store there, or http://www.gamasutra.com/view/news/2664 ... system.php discussing the effect of the tariffs on videogames)... which of course has lead to a huge greay and black market in consumer electronics and massive levels of piracy and counterfeiting because the government basically makes it impossible to offer legitimate products at affordable prices. But do you really want to do this elsewhere, like in Canada? While I'm quite sure that "open" companies like Google would love it, as it effectively makes competing business models illegal, I don't think that's good for competition...

Incidentally, I also wouldn't be so sure that Brazil's proposed legislation is WIPO compliant. The core obligation under Article 11 of the WCT is to "provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures". Given the negative impact, I think a strong case could be made that Brazil's proposal would be neither adequate nor effective.
July 10, 2010

Crockett said:

@Eo "No TPM can know when someone is trying to make a copy for legitimate purposes vs illegitimate purposes ... media producers that use TPMs will simply not distribute their products into jurisdictions with such a regime."

The above argument does not make much sense.

1) If someone wants to make an unauthorized copy of digital media, it's going to happen and there is no effective way to prevent it. When a TPM is (easily) broken for illegitimate purposes, then the TPM made no difference at all and so is ineffective.

2) If a TPM is being broken for legitimate purposes then there should be no loss on the part of the distributor, again an unnecessary tool.

So why TPM at all? It is all a smoke screen to "combat piracy" when the real reason is distribution control. The media distributors push for laws that make TPM circumvention illegal even for legitimate fair use purposes (Bill C-32). Thus forcing some to forgo their fair use rights to stay within the letter of the law and making the rest of us all "criminals"

Why our government is supporting such tactics I'll leave up to your imagination. But we know who the real criminals are.
July 10, 2010

Crockett said:

Hot off the presses!!
Harry Potter and the Order of the Phoenix has reportedly lost $165 million, despite its popularity at the box office.
The 2007 wizard movie is the ninth highest grossing film of all time in the global chart, taking $929 million.
But a net profit statement leaked online by industry blog Deadline suggests movie bosses at Warner Brothers still need to recoup $165 million of the film's budget.

No wonder they need tougher copyright laws and softer accounting auditing 0_o

Captcha: peddling funds .. heh ;-)
July 10, 2010

Andrew said:

@Eo Nomine
I'll echo what Crockett says. There is no technical measure in the world that will actually prevent copyright infringement. If people want to find a way around it, they will. There are effective business models based on closed, proprietary systems that are doing quite well right now (Just ask Microsoft or Apple if they're doing OK). The Brazilian law does not make it illegal to use DRM; it simply says that if you do choose to use DRM, you cannot prevent people from exercising their fair use rights. If I buy a Blu-Ray disk and want to circumvent the DRM to copy it to my iPod, Sony Pictures can't prosecute me, and can't prevent the development of tools that make that option available to me. That's what this law is saying. It's not saying that Sony Pictures can't use DRM, nor that they can't prosecute people who violate copyright law by circumventing their DRM.

In other words, don't equate circumvention with copyright infringement. They are not the same thing. If I circumvent the DRM on a Blu-Ray for the purposes of personal use, I have not broken copyright law; I've simply moved something I can enjoy in one medium to another more convenient medium. However, If I then take that and sell a broken copy of it to a thousand people, I have broken copyright law and I will be liable for any damages.
July 10, 2010

Andrew said:

The Public Domain is the natural state of any media. Copyright laws were enacted, originally, to protect works for a certain time so that their creator could recoup their investment and make some money on their work, with the understanding that after a certain period of time (originally 14 years) they would no longer have a protected right to making money on that work. They still could earn money on it, but a public domain work (e.g. a novel) could be printed by another person without paying a royalty fee to the original copyright owner.

To me, a better idea would be to abolish Public Domain and institute a liberal Creative Commons license after the exclusive copyright period (however long that is) expires. I'm in favour of short copyright terms–20 years–since that means that people have to maintain a level of creativity in order to earn a living. But a CC license would guarantee that, even after the copyright term expires, you would still need to attribute the work to the original owner; you couldn't have someone claiming that the work was their own.
July 10, 2010

phillipsjk said:

After the copyright expires, the Creative Commons licenses have no teeth: the only thing preventing you from breaking the license is copyright law.
July 11, 2010

Fabio said:

Brazilian copyright laws make a distinction between "moral" author rights and commercial ones. Only the commercial ones expire; the "moral" ones (which include attribution, for example) are eternal and may never be transfered in any way.

BTW, a few notes about the Brazilian proposal:

- It's currently under public consultation. If you go to http://www.cultura.gov.br/cons.../consulta/ , you may click on the links under each change to the current law and provide feedback about the proposed change.

- The translated part, IMHO, only applies to companies that implement copy prevention technology when it prevents a legal use of the copyrighted work, and the company refuses to either solve the problem or provide a non-protected version when inquired about the problem. BTW, the penalties are, according to the proposed law, tied to the same ones applied to anyone who circumvent copy prevention measures, which seem to me a very wise way to balance the penalties for circumventing copy prevention measures and for abusing them.
July 12, 2010

Eo Nomine said:

Andrew said "The Brazilian law does not make it illegal to use DRM; it simply says that if you do choose to use DRM, you cannot prevent people from exercising their fair use rights."

I'd suggest you read it again. Not only does the law say that circumventing "technical devices used ... to prevent or restrict reproduction" for fair dealing and other purposes is permitted (Art 107 § 2), it also says that anyone "who by any means ... hinders or impedes lawful uses" is liable (Art 107 § 1). By definition, any "technical device" that unilaterally restricts reproduction "hinders or impedes lawful uses", so anyone who employs such "technical devices" would potentially be liable. Basically, the only way to come within the contours of the law would be to create a "technical device" that magically only restricts copying for unlawful purposes but permits copying for "lawful uses".

"There are effective business models based on closed, proprietary systems that are doing quite well right now (Just ask Microsoft or Apple if they're doing OK)."

I agree, but that would be because the DRM that supports their model is not illegal in most countries. The DRM on the iPhone or the Xbox would probably be caught by the Brazillian proposal and, if so, would make Apple and Microsoft liable under the new legislation.
July 12, 2010

Luciana said:

Although Brazil is a member of WIPO, it has not signed the treaties that stipulate that contracting parties must protect DRMs against circumvention (WCT and WPPT).
So, even thought the Bill doesn't comply, it doesn't matter, because Brazil has no international obligation of doing so o/
July 12, 2010

David F. Skoll said:

I would go much further
Copyright is designed to protect that which can be copied. I would offer content owners a choice:

1) Enjoy the protection of copyright law, OR

2) Enjoy the protection of Technological Protection Measures.

I think any work encumbered by TPMs should automatically be non-copyrightable. It's just like choosing between a patent and a trade-secret. With a patent, everything is disclosed but the law protects you. With a trade secret, if the secret leaks out... too bad.

Unfortunately, I realize this can never fly, but I can always dream...
July 12, 2010

BrazilTorrents said:

Brazil's President, Lula, made a guest appearance at the Free Software initiate last year and was photographed shaking hands with a The Pirate Bay founder. They see something different in the interpretation of copyright here in Brazil as evidenced by their rejection of common drug patents.


July 12, 2010

asd said:

Well done, Brazil!
July 13, 2010

Peter Gerdes said:

The Real Tough Question
Is what kind of liability they intend to impose for breaking DRM when it turns out the use wasn't actually fair. If it's strict liability it's nothing but an empty gesture since most users of content won't have the skills to do it themselves and the people with the skills (say a school IT staffer) would be in jeopardy if they misread the law or were lied to about the purported use.

If all that's required is something like good faith you may as well not have an anti-circumvention law as proving the circumvention didn't happen in good faith and only latter get misused will be near impossible.
July 14, 2010

phillipsjk said:

I think David F. Skoll is on te something.
"I think any work encumbered by TPMs should automatically be non-copyrightable. It's just like choosing between a patent and a trade-secret. With a patent, everything is disclosed but the law protects you. With a trade secret, if the secret leaks out... too bad."

I think it may be worse that that: INAL, but my understanding is that unpublished works have even stronger protection that copyright: they never go into the public domain unless published and the copyright expires, for example.

DRM (not necessarily the same thing as TPMs) can be see as an attempt to sell unpublished works without actually publishing them. The fixation is often encrypted with only "authorized players" having the decryption key. So far, most works with DRM are under copyright, but is would be interesting to see what the courts would say about a DVD disk that reads:

"This is an unpublished work-in-progress released as a pre-view by Evil Enterprises Inc. As an unpublished work, normal copyright exemptions such as 'fair dealing' do not apply. By breaking this sticker, you agree to only use a player authorized by the DVD forum to playback this disk. You also agree that the copying of even short clips is prohibited. You also agree to assume liability in a civil suit in the event that 'traitor tracing' reveals that your copy has been leaked on the Internet."
July 14, 2010

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