BRAZIL Law and Practice Contributed by: Fabiano de Bem da Rocha, Gustavo Bahuschewskyj Correa, Kamille Trindade Machado and Milton Lucídio Leão Barcellos, Leão Intellectual Property
3. Copyright 3.1 Legal Framework and Copyrightable Works Copyright protection in Brazil is governed by the Brazilian Copyright Law (Law No 9,610/1998). The law protects a wide range of works, including liter- ary, artistic and scientific works such as texts, music, audiovisual works, software, databases (to the extent they are original in their structure or selection) and architectural works. Applied art and certain industrial designs may also be protected by copyright, provided they meet the originality requirement, although their protection may overlap with industrial property regimes. 3.2 Requirements for Copyright Protection Copyright protection arises automatically upon the creation of the work, provided that the work is origi- nal and expressed in a tangible form. Registration is not required for protection but may serve as evidence of authorship and date of creation. The key require- ment is originality, which is generally understood as the expression of the author’s intellectual effort. 3.3 Authorship and Ownership Authorship is attributed to the natural person who cre- ates the work. Joint authorship is recognised when two or more individuals contribute to the creation of a work. In employment relationships, the ownership of eco- nomic rights depends on the contractual terms, but as a rule, works created within the scope of employ- ment may belong to the employer. For independent contractors, ownership remains with the author unless there is a written assignment of rights. 3.4 Scope of Rights and Moral Rights Copyright holders are granted economic rights, including the rights to reproduce, distribute, adapt and publicly communicate the work. Brazilian law also recognises strong moral rights, such as the right of attribution and the right to preserve the integrity of the work. Moral rights are inalienable and
cannot be waived, although they may be exercised by heirs after the author’s death. 3.5 Term of Protection and Termination The general term of protection is 70 years counted from January 1st of the year following the author’s death. For audiovisual and collective works, the term is counted from publication. Brazilian law does not provide a structured system of termination or rever- sion rights comparable to some other jurisdictions. 3.6 Limitations, Exceptions and Defences Brazilian copyright law provides specific and limited exceptions, rather than a broad fair use doctrine. These include quotation for study or criticism, private use, parody (provided it is not a true reproduction and does not discredit the original work) and certain edu- cational uses. Courts tend to interpret these excep- tions restrictively. 3.7 Copyright Enforcement and Remedies Copyright infringement occurs when protected works are used without authorisation in violation of the rights of the copyright holder. Civil remedies include injunc- tions, damages and seizure of infringing copies, while criminal sanctions may apply in cases of wilful infringement, particularly involving commercial intent. Statutory damages are not specifically provided, but compensation may be calculated based on losses or unjust enrichment. 3.8 Infringement Tests and Substantiality Brazilian courts assess infringement based on wheth- er a substantial part of the work has been reproduced, considering both qualitative and quantitative aspects. Non-literal copying, such as the reproduction of struc- ture, sequence or organisation, may be actionable, particularly in cases involving software, where func- tional and expressive elements are analysed carefully. 3.9 Collective Management and Licensing Collective management organisations operate in Brazil to administer certain rights, particularly in the music sector. The most prominent entity is the Central Office for the Collection and Distribution of Copyright ( Escritório Central de Arrecadação e Distribuição –
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