The term Copyright comprises the prerogatives
conferred by law to the natural or legal person that creates the intellectual
work, in order to enable the author to enjoy the economic and moral rights
resulting from the use of their creations. Copyright is regulated by Copyright
Law No. 9610/98 and protects the relationships
between creators and those who use their artistic, literary or scientific
creations, such as texts, books, paintings, sculptures, music, photographs, and
so on. Copyrights are classified, for legal purposes, in moral and economic
Moral rights grant the author the right to claim
authorship over the intellectual work, in the case of works protected by the Authors´
Rights. Economic rights are those that mainly refer to the economic use of the
intellectual work. Authors enjoy the exclusive right to use their creative work
in the manner they wish, as well as to allow third parties to use them, either
totally or in part.
Contrary to moral rights, which cannot be transferred
or renounced, economic rights may be transferred or assigned to other persons,
to whom the author grants representation rights or the right to use his/her
creations. When the intellectual work is used without the prior authorization
of the right-owner, the person responsible for such unauthorized use infringes
the norms on copyrights, and his/her conduct may give rise to prosecution.
The intellectual work does not need registration to be protected. Registration,
however, is a manner of providing evidence on the authorship of a work and, in
some cases, to demonstrate who made the public declaration on authorship of a
Copyright in Brazil
Copyright started to be expressly recognized in our
country with the 1891, 1934, 1946 and 1967 Constitutions and the 1969 Amendment
to the Constitution. As for copyrights related to musical works, composers made
strong endeavors seeking the approval of norms which would govern collection of
rights when their works were used.
In Brazil, the societies involved in the defense of
authors rights started to appear in the early XX century. These non-profit
associations were established mostly by authors and other professionals connected
to music, their aim being to defend the rights of authors as regards the public
performance of all their members’ works.
Composer Chiquinha Gonzaga was one of the pioneers of
the movement in defense of copyrights in the country. Every time her musical
works were performed in theaters, she was of the idea that she
deserved a portion of the amounts collected, as she considered that her music
was an important part of the play and was as successful as the text presented.
In 1917 she founded the Brazilian Society of Drama Authors (that some time
letter was called Brazilian Society of Authors
- SBAT. In the beginning, members to the Society were solely drama
authors, but as time went by musical composers were also allowed to join the Society.
As a natural consequence, the associative movement grew and other entities were established.
With the diversification of associations with similar
objectives, problems never ceased to appear and increase. Users preferred to
continue using intellectual works with for free, as the payment made to any of
the existing societies did not imply full and final settlement of any claim and
permitted any other association to pursue payment of debts. Musical works, in
its great majority, were (and still continue to be) the result of partnerships
and for that reason several authors were involved, each one of them being a
member of one of the above entities, giving rise to separated collection and
distribution processes. To put an end to this problem, Law 5988 was approved in
1973, establishing a central office in charge of collecting and distributing
copyrights in the case of public performance of musical works. On January 2,
1977, the Ecad -
Escritório Central de Arrecadação e Distribuição (Central Office for Collection
and Distribution) started to operate in Brazil.
Copyright in Brazil today
In Brazil, collective management of rights had its
origin in the need to organize collection and distribution of copyrights when
music was used in places frequented by the public. No author could
possibly control the use of his/her work(s) in every village or city of the
country and worldwide, and therefore authors established music associations in
charge of managing their rights. This kind of management ensures authors, performers,
musicians publishing and recording companies full enjoyment of their rights, as
Brazil has adopted a system that permits collection and distribution of
authors´ rights (authors and publishers) and neighboring rights (performers,
musicians and recording companies). Collective management also facilitates
day-to-day work of music users, as they are granted a single broad
authorization to use any musical work protected and registered in the databases
of the Ecad and of music associations.
do not agree with this system or with centralized management are allowed by law
to manage their own musical repertoire themselves. Therefore they do not need
to become members of any of the nine associations to have their rights
preserved and ensured. However, it is crystal-clear that in a country with
continental dimensions such as Brazil, it is practically unfeasible for
copyright owners to be able to identify and monitor all the places in which
their works are being used and therefore to collect the copyrights owed in the
case of public performance.
Musical work and phonogram
Copyright owners are directly connected to the musical
work, whilst owners of neighboring rights are connected to their phonograms.
The musical work, as a human creation, has words and
music, or simply music. Instrumental music is also a musical work, even if it
does not have words.
A phonogram is the fixation of the songs of the
performance of a musical work or of other songs. This fixation is in general
embodied in a physical sound carrier, that is to say, an industrialized
product. Each track of a CD, DVD or LP constitutes a different phonogram.
Different kinds of rights
There are different kind of rights related to the
exploitation of musical works and phonograms. Some of these rights are directly
exercised by their right-owners, while others are managed collectively. They
are classified as follows:
• Right of graphic edition: related to the commercial use of printed
musical scores. It is generally exercised by authors directly or by their music
• Phonomechanical right: referring to the commercial
use of music recorded onto a physical soundcarrier. It is exercised by music
publishers and recording companies;
• Right of incorporation or synchronization – refers
to the authorization for a certain musical work or phonogram to be incorporated
in the soundtrack of an audiovisual production (films, soap operas, advertising
items, programming of television broadcasters, and so on) or in a dramatic
work. In the case of the unique use of a
musical work being played live, the administration of such right corresponds to
the music publisher. In the case of the use of a phonogram, the management of
the right corresponds to the publisher and the recording company.
• Right of public performance – refers to the performance
of musical works in places frequented by the public, by any means or process,
including transmission, broadcasting and cinematographic presentation. This
right is jointly exercised by the collective management societies that gather right-owners
and which are represented by the Ecad.
• Right of public presentation – refers to the
commercial use of drama works in places frequented by the public. If these
works also include a soundtrack, the authorization to perform the soundtrack
must be secured from the Ecad.
It should be recalled that the legal and statutory duties
of the Ecad refer to the protection of the right of musical public performance.
The defense of the other kinds of musical rights, such as the synchronization
and mechanical rights, is directly exercised by right-owners or through other
associations engaged in collective management [of rights].