TerraLex Cross-Border Guide to Cross-Border Copyright Guide

The main source of copyright legislation in Brazil is the Law No. 9610 of 19 February 1998 (LDA), which regulates copyright and neighbouring rights.

The LDA is the result of the Brazilian Government’s effort to adapt previous Brazilian copyright law to the provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPs) of the World Intellectual Property Organization (WIPO). Besides the LDA, Brazilian Federal Constitutions and infra-constitutional laws have established the protection of copyright since 1827.

Brazil is also a signatory of the revised Berne Convention (ratified in Brazil in 1975) and of TRIPs (ratified in Brazil in 1994).

The LDA establishes that any creation of the mind – by any way expressed and no matter the medium in which it is fixed (tangible or intangible, currently known or created in the future) – can be covered by copyright. The LDA offers a non-exhaustive list of examples of the intellectual works under protection:

LITERARY WORKS

Literary works include texts of literary, artistic or scientific works, lectures, addresses, sermons and other works of the same kind.

DRAMATIC WORKS

Dramatic works include dramatic and dramatic-musical works, and works of choreography or mime, whose stage performance is set down in writing or otherwise. This might be a script for a play, a dance routine that has been choreographed or a screenplay of a book for film.

MUSICAL WORKS

Musical works consist of musical compositions with or without lyrics, not including actions that are intended to be performed with the music. There is copyright regarding the performance of a musical work but that is a separate and distinct right (see the section on neighbouring rights below).

AUDIOVISUAL WORKS

Audiovisual works are those works that result from the fixing of images, with or without sound, whose purpose is to give, through their reproduction, an impression of movement, regardless of the processes used for capturing them, the medium initially or subsequently used for fixing them or the means used for disseminating the work. This category includes multimedia and cinematographic works.

ARTISTIC WORKS

An artistic work is a broad concept in scope and includes, amongst other things, photographs and works produced by a process analogous to photography, drawings, paintings, engravings, sculptures, lithographs and works of kinetic art, illustrations, maps and other works of the same kind, drafts, mock-ups, and visual arts relating to geography, engineering, topography, architecture, park and garden planning, stage scenery and science.

ADAPTATIONS

Adaptations, translations, and other transformations of an original work, presented as new intellectual creations. Protection is granted to an adaptation without prejudice to the copyrights of the original work.

COMPUTER PROGRAMS

A computer program is the expression of an organised set of instructions in natural or code language, contained in a physical medium of any kind, necessarily employed in automatic machines for the manipulation of data, devices, tools, or peripheral equipment, based on digital or analogue techniques, so they will operate in the way and with the purposes determined (with specific conditions regulated by Law No. 9609/1998).

COLLECTIONS

Collections or compilations, anthologies, encyclopaedias, dictionaries, databases and other works which, by the selection, co-ordination or arrangement of the subject matter, constitute intellectual creations.

NEIGHBOURING RIGHTS

The LDA also regulates neighbouring rights that protect the performance of interpreters and artists (eg actors, musicians, singers, dancers); the work of producers of phonograms and sound recordings; and the programmes of broadcasting companies.

The LDA does not contain an express definition of “work of authorship” and is silent about the prerequisites for its protection by copyright. Notwithstanding, the doctrine and jurisprudence understand that the concept of “creations of mind by any way expressed” leads to the conclusion that, to be protected by copyright a work must be: (i) the result of creative activity and, consequently, original; and (ii) materialised in any kind of medium, tangible or intangible.

The requisite of originality is not absolute, and it is not necessary for the whole work to be original. In general, the threshold for originality is low in Brazil.

Additionally, the LDA expressly determines what shall not be the object of copyright protection:

• ideas, normative procedures, systems, methods, projects or mathematical concepts
• schemes, plans or rules to carry out mental acts, games or businesses
• forms to be filled in with any type of information, scientific or not, and their instructions
• texts of treaties or conventions, laws, decrees, regulations, court decisions and other official acts
• information of common use, such as that contained in calendars, diaries, registers or legends
• isolated names and titles
• industrial or commercial exploitation of the ideas embodied in the works.

As a general rule, Brazil provides copyright protection if the author is a national of Brazil or is resident in a state which is a signatory to one of the various international conventions which Brazil is a party to, or resident in countries that assure Brazilians or persons resident in Brazil reciprocity in the protection of copyright or equivalent rights.

According to the LDA, the author has the exclusive right to use, explore and dispose of the work. Moreover, the use of a work shall depend on the author’s express prior authorisation, including for the following purposes:

• complete or partial reproduction
• publication
• adaptation, musical arrangement or any other transformation
• translation into any language
• incorporation in a phonogram or in an audiovisual production
• distribution
• incorporation in databases, storage in a computer, microfilming and any other storage format
• any other form of use currently existing or that may be created in the future.

Yes. In Brazil, the LDA affords the author the following moral rights:

• the right to claim authorship of the work at any time
• the right to have his or her name, pseudonym, or conventional sign to appear or to be announced as the author when the work is used
• the right to keep the work unpublished
• the right to ensure the integrity of the work by objecting to any modification or any derogatory treatment of the work or to any act that may be prejudicial to his/her reputation or honour as an author
• the right to modify the work either before or after it has been used
• the right to withdraw the work from circulation or to suspend any kind of use that has already been authorised where the circulation or the use of the work may have adverse impact on the reputation or image of the author
• the right to have access to the sole or a rare copy of the work that is lawfully in a third party’s possession

In an audiovisual work, the director shall exercise the moral rights.

Moral rights are inalienable and irrevocable. Moreover, upon death of the author, the first four moral rights listed above shall be transferred to his or her successors.

Moral rights do not apply to computer programs, except for the right to claim authorship.

The duration of protection for copyright works varies according to the type of work and the date of creation. In general, the duration of copyright protection is as follows:

Category

Literary, dramatic, musical or artistic works

Duration

Copyright expires 70 years as from 1 January of the year following the death of the author.

The rights of the joint author who dies without heirs shall be added to the rights of the surviving authors.

Where the author’s identity is unknown, copyright expires 70 years from the end of the calendar year in which the work was released to the public

Category

Audiovisual and photographic works

Duration

Copyright expires 70 years from 1 January of the year in which the work was released to the public

Category

Neighbouring rights

Duration

Protection expires 70 years from 1 January of the year following fixation for phonograms, transmission for broadcasts and public performance in other cases

Category

Computer program

Duration

Copyright expires 50 years from 1 January of the year in which it was released to the public or, in the absence of such date, the date of its creation

An author’s moral rights (see 2.4) are perpetual.

Pursuant to the LDA, the first owner of the copyright is the author of the work (ie the natural person who created the work). This means that a person who is shown as the author (or is announced as such) in the use of a work shall be deemed to be the author of the work, absence proof to the contrary. The main exception to this rule is where the work consists of a computer program, which shall belong to the employer or the contractor of the author, unless there is an agreement to the contrary.

Copyright in a work can be jointly owned by two or more persons. This can occur where a work is created by more than one person or where there is an assignment of the whole or of part of a work.

The joint author whose contribution can be used separately shall enjoy all the faculties inherent in its creation as an individual work, but is prohibited any use that may prejudice the exploitation of the whole work.

Unless otherwise agreed, the joint authors of a work shall jointly exercise their rights upon mutual agreement. The consent of all joint authors is required for licensing or using of the protected work.

When the work is done by the initiative, organisation and responsibility of one person and consists of the participation of different authors whose contributions merge into an autonomous creation, this is considered a collective work. In this case, each individual contribution shall be protected.

Regarding a collective work, any of the contributors may invoke their moral rights to prohibit indication of their name in connection with the collective work, without prejudice to their right to receive the remuneration accordingly.

The economic rights of a collective work shall belong to the organiser, and the agreement signed with each participant shall specify their contribution, delivery date, compensation and other conditions in relation to their work.

Copyright protection is independent of registration; it arises automatically upon creation of the work. However, authors and rights holders may register their work before the relevant public entity. The main registration authority in Brazil is the Copyright Office of the National Library. Regarding artwork, it is also possible to file pictures, paintings, and images before the Belas Artes School of the Federal University of Rio de Janeiro.

Although registration is optional, it is useful to ensure presumption of anteriority and/or to evidence authorship, date of creation and term of the relevant copyright.

According to the LDA, only economic rights can be assigned, transferred or licensed. The relevant agreement must be in writing, signed by or on behalf of the copyright owner, subject to the conditions of the LDA.

The assignment of the economic rights regarding future works shall encompass a maximum period of five years.

No. Moral rights are inalienable and irrevocable and cannot be assigned or waived.

Brazilian law does not differentiate between primary and secondary infringement as, for example, UK law does.

As stated above, Brazilian law does not differentiate between primary and secondary infringement.

There are a number of acts that can be carried out in relation to copyright works despite the fact that they might be protected by copyright. These permitted acts (exceptions and limitations) are wide in variety but often relate to very specific scenarios. They include (amongst others):

Act

Reproduction of news and articles by the press

Description

Reproduction in the daily or periodical press of news or informative articles, from newspapers or magazines, with the mention of author’s name (if signed) and of the publication from which they have been transcribed

Act

Reproduction of public speeches

Desciption

Reproduction in the daily or periodical press of speeches given at public meetings of any kind

Act

Reproduction of portraits

Description

Reproduction of portraits or of other works of representation of personal image, made as a work for hire, where the reproduction is done by the owner of the original work and the represented person or his/her heirs have no objection to it

Act

Reproduction for visually disabled individuals

Description

Reproduction of literary, artistic or scientific works for the exclusive use of visually disabled individuals, provided that the reproduction is done without commercial intent, either in Braille or another process using a medium designed for such users

Act

Private use

Description

Reproduction in one single copy of short extracts of a work for private personal use, without commercial intent.

Stage and musical performance, where carried out in the family circle

Act

Quotation

Description

Quotations are permitted for studies, criticism and review, as long as the quotation includes an indication concerning the name of the author and the origin of the work

Act

Private study

Description

Notes taken by attendees of lessons given in teaching establishments, provided that their complete or partial publication is prohibited without the express prior authorisation of the person who gave the lessons

Act

Demonstration

Description

Use of literary, artistic or scientific works, phonograms and radio and television broadcasts in commercial establishments for the sole purpose of demonstration to customers, provided that said establishments commercialise the materials or equipment that make the use of such works possible

Act

Teaching purposes

Description

Stage and musical performance carried out exclusively for teaching purposes in educational establishments, without intent for profit

Act

Proof in judicial or administrative proceedings

Description

Use of literary, artistic or scientific works to produce judicial or administrative proceedings evidence

Act

Short extracts

Description

Reproduction in any work of short excerpts from existing works, regardless of their nature, or of the whole work in the case of a visual art, on condition that the reproduction is not per se the main subject matter of the new work and does not jeopardise the normal exploitation of the work reproduced or unjustifiably prejudice the author’s legitimate interests

Act

Parody

Description

Paraphrases and parodies shall be free where they are not actual reproductions of the original work and are not in any way derogatory to it.

It should be noted that parodied work does not excuse defamatory remarks or negate the moral right to object to derogatory treatment of a work

Act

Public places

Description

Works permanently located in public places may be freely represented by painting, drawing, photography and audiovisual processes

The LDA does not provide specific provisions on linking or “framing” of work covered by copyright. The mere insertion of a hyperlink may not per se be considered as copyright violation as it does not reproduce protected works, but rather directs the user to a specific site where the protected work may be freely accessed by the public.

However, linking or framing copyright material without the necessary consent may infringe the rights holders’ exclusive right of public communication; thus, it is likely to be considered as copyright infringement.

Under the LDA, copyright infringement is actionable by the copyright owner. When copyright is licensed, the authority to bring an infringement action depends on the licence agreement between licensee and licensor.

The LDA provides the following remedies for rights holders:

• injunctions against the infringers (including search orders, freezing orders, and non-disclosure orders)
• seizure of infringing articles
• forfeiture of infringing articles and payment of the price of infringing articles sold to third parties
• indemnification for damages resulting from the infringement.

Where it appears that a website is displaying infringing material, rights holders can seek an injunction from the court ordering the internet service provider (ISP) to remove the material or block the website.

The Brazilian Internet Act (Law 12.965/2014), which establishes the basic principles governing the use of the internet in Brazil, also does not provide a specific procedure for addressing online copyright infringement. Under Article 19, internet application providers may only be held civilly liable for damages arising from third-party content if they fail to take action to make the identified unlawful content unavailable after receiving a specific court order.

However, the interpretation of the Brazilian Internet Act regarding platform responsibility is currently evolving. Although Article 19 still requires a court order for civil liability — a requirement under review by the Supreme Federal Court (STF) in Themes 533 and 987 — there is a growing trend, both legislatively and judicially, influenced in part by initiatives such as the European Union’s Digital Services Act, toward imposing a “duty of care” on platforms.

This shift suggests that platforms could, in the future, be held liable for copyright infringement if they fail to proactively address massive violations or refuse to adequately compensate creators, particularly monetized content.

There is one specific crime regarding copyright, established in the Penal Code (Decree No. 2848/1940). There are some variations regarding copyright and neighbouring rights infringement. The sanction for committing a criminal offence in relation to copyright is likely to be a fine and/or a prison sentence.

If an offence is committed by a company and it is proven that an individual officer of the company consented to committing the offence, that officer must also be liable for the criminal act.

In order to characterise each criminal act, evidence is required of different levels of intention, knowledge or belief on behalf of the potential offender, and each carries various penalties:

Criminal act

4.3.1 Copyright and neighbouring rights infringement.

Penalty

Three months to one year of criminal detention, or a fine.

Criminal act

4.3.1.1 If the violation consists of a total or partial reproduction of intellectual work, interpretation, performance or phonogram for profit, by any means, without the express authorisation of the author, performer, or producer, or of who represents them.

Penalty

Two to four years’ imprisonment, and a fine.

Criminal act

4.3.1.2 If someone distributes, sells, exhibits for sale, rents, introduces into the country, acquires, hides or stores an original or copy of intellectual work or phonogram reproduced in violation of copyright or neighbouring rights; or rents an original or copy of intellectual work or phonogram, aiming at profit and without the express authorisation of the right holders or who represents them.

Penalty

Two to four years’ imprisonment, and a fine.

Criminal act

4.3.1.3 If the violation consists in the offer to the public by cable, optic fibre, satellite, waves, or any other system that allows the user to make the selection of the work or production to receive it at a time and place previously determined by the one who formulates the demand, for profit, without express authorisation of the author, performer, phonogram producer or who represents them.

Penalty

Two to four years’ imprisonment, and a fine.

Criminal act

4.3.1.4 Items 4.3.1.1, 4.3.1.2 and 4.3.1.3 above shall not apply in the case of an exception or limitation to copyright or neighbouring rights, or in the case of copying an intellectual work or phonogram (only one copy) for the private use of the copyist, with no intention of direct or indirect prof

The time limit is three years to bring a claim for breach of copyright. Time begins to run from the date on which the rights holder became aware of the violation.

In Brazil, the general rule is that the unsuccessful party pays the statutory attorneys’ fees and court costs of the successful party. However, this is subject to the very wide discretion of the court, who can order otherwise, and the costs could be shared by the parties should the final decision only partially grant the claims of one party.

Copyright litigation matters can be brought to ordinary state civil courts. The special courts for small claims (Juizado Especial Cível – JEC) provide an alternative for less complex cases that involve claims worth less than R$35,200 (approximately US$10,000).

Copyright litigation matters resulting from employment relationships will probably be directed to the relevant labour courts.

Criminal proceedings, although rare, can be brought on the grounds described in 5.3 above, and pursued through the criminal courts.

The Brazilian Ministry of Culture is the official government body responsible for the promotion of copyright protection in Brazil.

To use copyright material without infringing the rights of another, you usually need to gain permission of the rights holder. However, as a result of the practical difficulties and administrative burden for copyright owners in granting licences individually to all those seeking them, rights holders participate in collection schemes by signing up as members of the collecting societies. Once members, they either transfer rights to the collecting society, which then administers the rights for them, or appoint the society as their agent.

The key collecting societies in each sector are as follows:

Agency

ECAD - Central Office for Collection and Distribution

Who it represents

Authors, performers, musicians; publishing and recording companies

Agency

UBEM – Brazilian Union of Music Editors

Who it represents

Music editors

Agency

ABMI – Independent Brazilian Music Association

Who it represents

Musicians

Copyright levies are not payable in Brazil.

MUSIC STREAMING In a recent decision, the Superior Justice Court decided that music transmission via streaming is considered a public execution of a work subject to the provisions of Article 68 of Law 9610/98, which establishes that a copyrightable work cannot be used without the prior and express authorisation of the author or titleholder and the collection of royalties must be done prior to such execution. Such decision is based on the understanding that royalties are not due as a result of the accessing of the music by the individuals, but rather by the act of making the music available to all users.

COLLECTIVE COPYRIGHT SYSTEM

A proposal to reestablish the Ministry of Culture as the responsible authority to manage the collective copyright system was approved. Law No. 12853/2013 establishes that ECAD, the organisation that collects and distributes royalties for public performance rights, will be regulated and monitored by the Brazilian Ministry of Culture. The scope of the Law was the transparency, efficiency, modernisation and regulation of the collection and distribution of royalties.

ECAD challenged the constitutionality of Law No. 12853/2013 before the Brazilian Supreme Court, which ruled against ECAD.

The Copyright Reform Bill has been under review by the Brazilian Congress since 2012. Among its proposed changes are the expansion of exceptions and limitations to copyright protection, as well as the introduction of measures to regulate the use and exploitation of copyrighted works on the internet.

In parallel, one of the most critical developments is the legislative debate on regulating Artificial Intelligence in Brazil, specifically Bill of Law No. 2338/2023 (the Artificial Intelligence Legal Framework). The central aspect of the discussion concerns the intersection between copyright law and the use of protected works in AI training datasets. Key points under debate include: (1) Text and Data Mining (TDM): whether the use of copyrighted materials to train large language models (LLMs) constitutes a copyright exception or requires licensing/remuneration; (2) Transparency obligations: potential requirements for AI developers to disclose the datasets used for training; and (3) Generative Output: confirmation that AI-generated content does not qualify for copyright protection due to the absence of human authorship, in line with international trends and recent Brazilian administrative decisions.

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