Brazil’s Copyright Reform: Schizophrenia?

Inside Views: Brazil’s Copyright Reform: Schizophrenia?
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By Pedro Paranaguá, Doctoral Candidate, Duke University School of Law

Brazil’s new Minister of Culture is under severe pressure from civil society groups, academics and some artists. After just a few weeks in power, Minister Ana de Hollanda issued an order to take the Creative Commons license off of the Ministry’s website. In her own words (in Portuguese): “We will discuss copyright reform when the time comes.”

After nearly seven years using CC licenses, a legacy left by musician and former Minister of Culture Gilberto Gil, now Brazil’s Ministry of Culture abruptly withdraws the license without further dialogue or consultation. Why is that a problem?

First, the new president Dilma Rousseff was Lula’s henchwoman. She is known to be personally supportive of Brazil’s National Plan for Broadband (PNBL), as well as of the immense and organized free culture, and free and open source software movements in the country (as we all know, free as in freedom; and not free of charge). Hence, those who voted, and elected, her exactly for her support to these initiatives are feeling misrepresented.

Second, because under the former mandate Brazil had conducted a long, wide and open public consultation with all stakeholders to get inputs for finally reforming the country’s copyright law – one of the most unbalanced copyright regimes in the world [pdf]. These two are, together, an asynchronism that is hard to justify.

Prominent culture producers and famous artists are publishing an avalanche of pieces in Brazil’s major newspapers. It’s a buzz everywhere in the country’s culture circles. Some are strong supporters of the new minister’s action. Others are equally strong opponents (all in Portuguese).

I will not get into details of the discussion whether who is right and who is wrong. Or whether a Creative Commons license should be used by Brazil’s government. Although this is an important part of the discussion, as I have said elsewhere, this is only the tip of the iceberg. The issue is deeper, much deeper.

At first glance this debate looks schizophrenic. People demanding wide access to culture. Artists demanding fair remuneration. As if the two were opposed or incompatible.

Wide culture access does not mean the lack of fair remuneration. On the contrary. A basic algebraic rule tells us that the more one sells, the more money one makes. Of course one could argue that the higher the demand, the higher the prices. However, one thing, though disputed by some, cannot be ignored: intellectual property rights are non-rival and non-scarce. My use does not interfere with your use, and my consumption does not diminish yours. Digital files and the internet changed forever the copyright scene.

Artificial scarcity does not work, and in the long term it is not good to anyone – neither to consumers, nor to artists or corporations alike. Of course intermediaries feel threatened. Their end is near, unless they are as creative as the copyright industry is meant to be. Collecting societies seem scared of losing their slice of the cake. They do, however, have their function. Should they fairly distribute the royalties, and have an open and transparent management system, they would still have their function, provided artists, consumers (after all they are the ones paying the royalties), and competition and consumer authorities have the right and obligation to scrutinize their functioning.

More than that. There should be a non-exhaustive list of exceptions and limitations to copyright, authorizing educational and private non-commercial uses, in furtherance to a broader fair use-like clause. This would make a more balanced system.

Disruptive innovators are disturbing incumbents. And the reason is simple. Innovators are being creative. They are using technology not only for their own benefit, but for the benefit of society as a whole. New ways of doing business can proportionate a much wider system of remuneration for the use of copyrighted works, at the same time that people have greater access to culture.

Merchandising. Video-games. Mobile telephony packages such as TDC Play. Broadband packages. Spotify’s unlimited free streaming. VEVO’s ad-supported music videos. Marketing uses of Creative Commons licenses such as the one successfully made by Nine Inch Nails. Netflix. The model used by Radiohead. Google’s recently launched Android Marketplace. The examples are plentiful. To enumerate all possibilities or find a creative business model for the copyright industry is not my job, however.

There is no place for extremisms. That’s for sure. Simply demanding access without fair remuneration is not an option – although there are indeed several successful business models based on free. It does not matter who pays, as long as there is someone paying somewhere within the consumer chain. Equally true, simply advocating for an eternal copyright protection term (in Portuguese), as has recently been proposed, is not an option. This would indeed be a schizophrenic conversation.

Copyright is not, and should not, be viewed only as a means for creating arts and remunerating artists. Its spectrum is much wider. Cultural diversity, education, and innovation are, and should be, essential parts of a broader copyright policy. The digital world and the internet changed copyright forever. What Brazil needs is a true long-term countrywide intellectual property and innovation policy program – including, but not limited to, copyright. And it should be designed to meet the specific needs of the country, having in mind the existing flexibilities in international treaties.

And for that, not only the Executive power has an important role, but also Congress. People active in this debate should realize that Congress represents them. And the Judiciary could also play a crucial role depending on the interpretation it gives to certain decisions. All of the three branches always having in mind a common goal: cultural diversity, education, innovation, and national development.

A true balanced approach, free of biases, through dialogue, participation, and transparency; that is the path to be followed. The time for a copyright reform in Brazil has already come. Now culture users and artists must acknowledge that they are in the same boat, as we say in Brazil. One needs the other. One wants the other. Both want art. Both are ready and willing to exchange (money and art) for the mutual benefit of society – provided it’s fair, transparent, and democratic.

Pedro Paranaguá is a doctoral candidate at the Duke University School of Law. He holds a Masters in Law (cum laude) from University of London, and is an IP consultant.