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Regarding non voluntary licences, one of the most controversial points of the Bill changing the Law of Copyright in Brazil

In the first semester of 2010, a public consultation was opened by the Ministry of Culture for discussing the Bill changing Law no. 9,610/98 (the present Copyright Law), which will be sent to the National Congress after exhausting the discussion.

There has been discussed in the Bill, inter alia, the following outstanding topics: limitation of the copyright, the establishment of the collective management systems towards strengthening the State supervision of the collective management and contracts involving the transfer of copyright.

However, one of the most controversial points of this Bill is, probably, the one dealing with the compulsory licences, which, in the text of the law, are called “voluntary licences”.

First, it well to remark that the compulsory licences, specially used in the patent fields, such as set down in the Paris Convention and in the legislation of a number of countries, aim at obviating the monopoly abuse or the exclusive right of the patent on the part of the registrant. In other words, the compulsory licence consists of an authority from the State for a patent to be produced / distributed without the need of the registrant’s authority, in compliance with certain requisites.

In the ambit of the International Copyright Law, this matter is regulated by the Bern Convention, which stipulates that the licence may be granted only to scholars, universities and research purposes. Furthermore, it has been established that the licences are to be granted for definite terms.

In the present Brazilian Legislation, this topic has been omitted. In fact, the omission must be corrected, in that the use of compulsory licences in the matter of copyright causes much insecurity, as it involves an expropriation of a right of property, even though there is certain compensation.

The Brazilian Government, upon incorporating provisions concerning the non-voluntary licences, aim at correcting inaccuracies in certain items of the producing chain, by mentioning controversial cases involving heirs of great artists who have been imposing barriers, sometimes unsurmountable, to access important works for the cultural development of the society.

It happens that the Bill in question proposes a text broader than the one of the Bern Convention to the extent that it grants a non-voluntary and non-exclusive licence to a “translation, reproduction, distribution, In edition and exposition of literary, artistic or scientific works, provided that the licence necessarily attends to the interest of science, culture or the fundamental right of access to the information”.

In the above respect, the Brazilian Association of the Intellectual Property (short of ABPI) was favorable to replace the text proposed by a simple provision of non-voluntary licensing only in the case of ”orphan works”, to wit, those which fall within the term of legal protection, the author, however, even though known, can not be found.

Furthermore, ABPI queries whether or not it is incumbent on the Ordinary Law to transform the access to works protected in public utility. To sum up, ABPI understands that, there positively should be admitted the compulsory licence, when involving exceptionally serious cases and provided very properly defined or under hypotheses in which there should not be unjustified damages to the authors/owners of the works.

It is important to highlight that the proposals from those contrary to the granting of non-voluntary licences, such as provided in the Bill in question, have been sent to the Ministry of the Culture, which will analyse the contributions and will prepare a technical report to be directed to the National Congress.

In spite of the intention laid down in the Bill towards balancing the protection of the copyright with access to culture and information, with a view to attending to the social function of the property, this matter must be carefully analysed in order not to render banal the compulsory licences and the legal insecurity on the part of the investor of cultural assets about the works protected by the Intellectual Property.

Carmen Sánchez-Puelles