On March 26th 2019, the European Parliament voted in favor of the new EU Copyright Directive, aiming to adapt its copyright rules to the digital age. As 73% of young (16-24) European internet users listen to music, watch TV series and films or play games online, one of the Copyright Directive's changes lies on how online content sharing services should deal with copyrighted content.
According to article 17, platforms that rely on user-uploaded content are now required to obtain from the rightsholders an authorization to make a copyrighted content available to the public.
In the absence of a deal, online content-sharing service providers may be held liable for unauthorized acts of communication to the public of copyright-protected works unless they are able to demonstrate that they have made a real effort to obtain a license AND acted expeditiously to stop users from accessing unauthorized content. Online platforms with more than three years and an annual turnover over EUR 10 million must also make best efforts to prevent the future uploads of said notified works.
In Brazil, Law 12,965/14 provides, in its article 19, that internet providers can only be held liable for damages resulting from content generated by third parties if, after a specific court order, they do not take any steps to timely make unavailable the infringing content.
However, paragraph 2 of same article 19 states that the application of this liability exemption depends on a specific legal provision, which so far hasn't come. Accordingly, Brazilian courts have steadily been applying the Brazilian Copyright Law and dismissing copyright infringement claims if, after communication, the internet provider removed the infringing content from its platform or blocked its access.
As we saw with EU's General Data Protection Regulation and the Brazilian similar law approved in August 2018, European laws can influence Brazilian policy and it did so with regard to this copyright matter as well.
On mid-2019, the Federal Government's Special Secretary of Culture launched a public consultation on copyright. The reason of the public consultation was precisely the need to the adapt the national copyright statutes to the new technologies and new business models. According to the Secretary, this public consultation was the first step of the Federal Government towards building a bill that reforms Brazil's Copyright Law but also involves the civil society in the process.
In the same token, in late 2019, Bill no. 2,370/19 was introduced in the House of Representatives by Rep. Jandira Feghali with the purposes of updating the Brazilian copyright law. One of the main issues the bill addresses is precisely the liability of online platform concerning IP infringing content that are uploaded by the users.
Under Bill no. 2,370/19, internet providers could only be held liable for infringement if, after being communicated by the titleholder, they do not act to remove or block the content. The Bill makes then statutory what was before a mere understanding of the courts. The Bill also introduces a notice-notice system, through which the internet provider, once notified of the infringing content, shall contact the user and inform her/him of the copyright claim. It is up for the user to decide if she/he agrees with the claim or would like to keep the content available. If he/she does, then the user becomes the sole liable, exempting the internet provider of any responsibility. It will be interesting to follow the debates in both chambers and see what pieces of the bill will turn into law.
It is important to note that Bill no. 2,370/19 was not proposed by the Executive Branch. In fact, it was proposed by the opposition party, showing the consensus across the aisles around the need of reforming the Brazil's copyright system.
Considering the fast-growing consumption of online content by Brazilians, it is very important to follow the discussions around Bill no. 2,370/19 and all the other initiatives of all branches of government.
Originally published in IPWatchdog, 22 February 2020.
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