Droit d’Auteur vs. Copyright – Learn the differences between Brazil and U.S. main regulations

Copyright is the legal area aimed at protecting creations of an intellectual, artistic or scientific nature, encompassing not their utility, but essentially their creative and aesthetic aspect.

In this comparative work, we highlight, in general terms, the main characteristics of existing Copyright systems, as well as elements relevant to their understanding, with a view to serving as a guide for those who intend to protect works, whether in Brazil or in the United States.

  • Droit d’Auteur vs.Copyright

There are two dominant strands in Copyright Law, Droit d’Auteur, commonly adopted in countries with a European legal tradition, such as Brazil; and Copyright, commonly applied in countries adhering to the Common Law system, such as the United States and the United Kingdom.

            The main difference between the two systems is the protection approach. Whereas the Copyright seeks to address the aspect of the economic exploitation of a given work, Droit d’Auteur focuses on the protection of the author’s relationship with their work, from a more personal than commercial point of view.

            Thus, unlike the Copyright system, wherein all guaranteed rights pertain to its commercial characters, copyright in the Droit d’Auteur system is subdivided into two categories: moral rights and property rights. Those in the first class are framed as rights of the personality, inalienable and unwaivable, such as the right to claim authorship, to be given credit, to withdraw the work from circulation, etc. In turn, property rights pertain to the economic use of the work, which can be object of disposal by the owner. Among them are the right to reproduce the work, edit it, adapt it, translate it, etc.

  • Registration

            Likewise, systems differ in the nature of the registration. In the Copyright system, the registration of the work in a competent agency, with attribution of authorship, is an essential requirement for economic use, transfer, or exercise of rights against third party at the judicial level. In Copyright, the registration has only declaratory purpose, being enough, for the protection and economic use, that the work meets the requirements of novelty and originality and has been made public, by any means. 

  • Protection Term

            As for the term of protection, this is a specific feature of each national legislation. However, both Brazilian and US systems provide, as a general rule, for a period of protection of 70 years from January 1 of the year following the death of the work’s author, each with its own exceptions.

  • Authorship

            In the Copyright system, the issue of authorship is treated from the point of view of ownership of the economic exploitation rights relative to the work, which can occur in the following ways:

  1. Initial Ownership – this is the original authorship, benefiting an individual author or the co-authors of a work;
  2. Works Made for Hire – this is the case of a work made to order, in which the title is presumed in favor of the person who hires the production of the work;
  3. Contributions to Collective Works – this is the hypothesis of a collective work, in which each contributor has ownership of their contribution, while the organizer (in a collection of articles, for instance) has ownership of the work as a whole.


The Brazilian Copyright system, on the other hand, prioritizes the person of the author, and the authorship should always, originally, belong to a natural person, even if the work has been made to order.


Thus, to understand the hypotheses of authorship in the Brazilian system, it is necessary to correlate them with the nature of the work in question:

  1. Individual Authorship – this is authorship that benefits a single author as the original titleholder of a work;
  2. Co-authorship – it is the authorship that benefits two or more authors, in the case of works carried out by more than one individual;
  3. Collective Work – this is a work created under the organization of an individual or legal entity, and which is constituted by the participation of different authors, whose contributions merge into an autonomous creation; in this case, each author will own their contribution and the organizer will own the work as a whole; and
  4. Related Rights – these are the rights belonging to actors, singers, musicians, dancers or other people who play a role, sing, recite, declaim, play or perform in any way literary or artistic works; providing that this class also includes the rights of producers and broadcasters over phonograms.

It should be pointed out that, in the Copyright system, all authorship is subdivided into moral and property rights, with the rules above applying in any case.

  • Protected Works

Both the US Copyright and the Brazilian Copyright provide that the protection is intended for intellectual works resulting from creations of the spirit, which can be perceived, reproduced or expressed by any means or fixed in any support, tangible or intangible, known or conceived in the future.

In both systems, the legislator chose to list comprehensively, but not exhaustively, the works that may be the object of protection, such as: texts of literary, artistic or scientific works; dramatic and dramatic-musical works; musical compositions; photographic works; works of drawing, painting, printmaking, sculpture, lithography and kinetic art; illustrations; architecture designs; software[1]; among others.

            In order to outline the limitation of such rights, both systems also chose to list types of works that are not protected, such as: ideas, rules or plans of games, blank forms, official acts, among others.

  • Limitations to Copyright

            It is equally relevant to understand what the limitations to Copyright Law are, hypotheses of use that are authorized, even in the case of protected works.

  • Brazilian Copyright (Direito Autoral)

            Brazilian Copyright Law reserves a specific article to list such hypotheses, exhaustively (Article 46, Copyright Act), especially the following:

  1. Reproduction, in the press, of informative articles already published, or speeches given at public meetings, provided that credit is given to the author and the origin of the work is mentioned;
  2. Reproduction of literary, artistic or scientific works, for the exclusive use of the visually impaired, provided that it is not for commercial purposes;
  3. Quotations of excerpts from any work, for purposes of study, criticism or controversy, provided that credit is given to the author and the origin of the work is mentioned;
  4. Use of literary, artistic or scientific works, phonograms and radio and television broadcasting in commercial establishments, exclusively for demonstration to customers;
  5. Reproduction, in any works, of small parts of pre-existing works (or of a complete work, in the case of plastic arts), provided that the reproduction itself is not the main purpose of the new work, and that it does not harm the normal exploitation of the reproduced work or cause an unjustified prejudice to the legitimate interests of the authors.

The hypothesis of item (v) above deserves to be highlighted even more, since it integrates the concept of “fair use.” This is a generic authorization for the reproduction of excerpts from a work in the context of another work, provided that three requirements are met, namely: the reproduction should be contextual and circumstantial, without the new work being built around the original; it cannot dilute or diminish the power of the owner to economically exploit the original work; and cannot represent a discredit to the original work, or any similar prejudice to the author’s interests.

  • US Copyright

The US Copyright system also lists “fair use” as a hypothesis of limitation to copyright, only with a greater focus on the analysis of the purpose of reproduction, underlining informative or educational purposes. Likewise, such reproduction cannot have commercial purposes, it should be limited to small parts and not affect the market value of the original work.

In addition to the cases above, the following cases of copyright limitation in US laws bear attention:

  1. Reproduction of works by archives or libraries, without the purpose of commercial use, provided that the requirements and limitations established by law are fulfilled, such as the inclusion of a notice of protected work, among others;
  2. Commercialization of copies obtained legitimately, by those who obtained them, without the need for authorization from the author, respecting the requirements and exceptions of the law, such as software; and
  3. Reproduction or performance of a protected work in the context of educational activities, in a non-profit educational establishment.
 

Copyright
Direitos Autorais
Legal BasisCopyright Constitutional Clause (Article 1, section 8, clause 8); Copyright Act 1976 (17 USC 101 et seq);Digital Millennium Copyright Act 1998, encoded in the Copyright Act, 17 USC 512, 1201-1205, 1301-1332.International treaties: Buenos Aires Convention;Berne Convention for the Protection of Literary and Artistic Works;Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms;Brussels Convention on the distribution of signals carrying programs transmitted by satellite;Universal Copyright Convention (UCC) (Geneva and Paris), WIPO Copyright Treaty (WCT); andWIPO Treaty on Performances and Phonograms (WPPT).CFRB 88;Copyright Act (Law no. 9610/98);Software Act (Law no. 9609/98).International treaties:  Berne Convention for the Protection of Literary and Artistic Works;Inter-American Convention on Copyright in Literary Works;Scientific and Artistic (Washington Convention);WIPO Rome Convention for the Protection of Artists, Phonogram Producers and Broadcasting Organizations, 1961;Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonograms (Convention on Phonograms); andTreaty for the International Registration of Audiovisual Works. 
ObjectCreative works, original works of authorship such as books, articles, songs, photographs, sculptures, choreography, sound recordings, films, and other works, fixed on tangible support or not; in addition to Software.  Creative works, original works of authorship such as books, articles, songs, photographs, sculptures, choreography, sound recordings, films, and other works, fixed on tangible support or not; in addition to Software.
Eligibility RequirementsOriginal and creative expression, characterized by novelty, and that has been made public, by any material or immaterial means.Original and creative expression, characterized by novelty, and that has been made public, by any material or immaterial means.
RightsCopyright Act grants the owner of a copyright the following exclusive rights, as well as the right to authorize third party to exercise those exclusive rights: Reproduction of work in copies or phonographic records; derivative works;Distribution of copies or phonographic recordings of work to the public by sale or other transfer of ownership, by rent, lease or loan, the performance of the work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes and films and other audiovisual works;Execution of the work publicly.    Author’s Moral Rights: Claim, at any time, of the authorship of a given work and to have one’s name, pseudonym or conventional sign indicated or announced, in the use of one’s work;Conservation of the unpublished work and integrity of the work, opposing any modifications or the practice of acts that, in any way, may harm it or affect the author, in their reputation or honor;Modification of the work, before or after use; andRemoval or suspension of circulation of work, when the circulation or use implies a threat to their reputation and image. Author’s Property Rights: Exclusive right to use, enjoy, and dispose of the literary, artistic or scientific work.The use of work, by any means, depends on the author’s prior and express authorization, such as:partial or complete reproduction;the edition;adaptation, musical arrangement, and any other transformations;translation into any language;inclusion in a phonogram or audiovisual production;distribution, when not intrinsic to the contract signed by author with third party for the use or exploitation of work;the distribution for the offer of works or productions by means of cable, optical fiber, satellite, waves or any other system that allows the user to carry out the selection of the work or production in order to perceive it at a time and place previously determined by the person who formulates the demand, and in cases where access to works or productions is made through any system that requires payment by the user;the use, directly or indirectly, of the literary, artistic or scientific work, through: a) acting, recitation or declamation; b) music playing; c) use of loudspeakers or similar systems; d) sound or television broadcasting; e) capture of broadcast transmission in collective attendance locations; f) ambient sound; g) audiovisual, cinematographic or similar exhibition; h) use of artificial satellites; i) use of optical systems, telephone wires or not, cables of any type and similar means of communication that may be adopted; j) exhibition of works of plastic and figurative arts; inclusion in a database, computer storage, microfilming, and other forms of similar filing;any other modalities of use existing or to be invented.
TermAuthor’s life plus 70 years (with exceptions).Author’s life plus 70 years (with exceptions).
How rights are acquiredCreation and fixation in any means of expression now known or later developed, from which they can be perceived, reproduced or otherwise communicated, directly or with the aid of a machine or device.Creation and expression by any means or fixed on any support, tangible or intangible, known or invented in the future.    
Mandatory RegistrationRegistration is not required to obtain copyright, but is recommended in view of the requirement to file a claim for copyright infringement in federal courts, to bar infringing imports from entering the US, and to allow damages to be claimed in the event of copyright infringement, thus removing the need to prove actual damages.  Copyright protection is independent of registration.            
  • Registration

As stated above, in Brazilian Copyright Act, registration is not an essential requirement for protection. Nonetheless, regardless of the system in question, the registration of an author’s work is highly recommended, as it constitutes more robust proof of authorship to be enforced to third party, in the case of infringement, or even to give greater tangibility to assignment and license agreements.

  • Registration in Brazilian Copyright Law

            The Copyright laws defines that the intellectual work can be registered with the competent agency with which it has the greatest affinity, among those listed. Thus, it is possible to establish the following correlations between types of works and competent bodies for registration:

  1. literary and related works: National Library;
  2. song lyrics and sheet music: Music School/UFRJ;
  3. drawings (jewels, characters, logos, etc.), paintings, printmaking, sculptures, lithographs, kinetic arts, photographs, paintings, and watercolors: School of Fine Arts/UFRJ;
  4. audiovisual works: National Film Agency (Ancine);
  5. studies, draft projects, projects, sketches and visual works and other forms of expression and visual representation concerning agronomy, engineering, geography, geology, and meteorology: Federal Council of Engineering and Agronomy (CONFEA);
  6. software: National Institute of Industrial Property (INPI);
  7. projects, works, and technical works of Architecture and Urbanism: Council of Architecture and Urbanism of Brazil (CAU/BR).
  • US Copyright Registration

            In accordance with American Copyright legislation, the registration of the author’s work should be carried out before the Copyright Office, regardless of the nature of the work. It is important to underline that the registration, in this case, is not essential for the accrual of the right, but for the filing of actions for infringement, or for the registration of the transfer of rights.

  • Registration Procedures

To better clarify the registration procedure in the different scenarios, see the tables below, with the main aspects of the registration procedures, both in Brazil and in the USA.

Brazil

TYPE OF WORKREGISTRATION AGENCYREQUIRED INFORMATIONREQUIRED DOCUMENTSTERMCOST
Literary and related worksNational Library    According to the form to be completed on the BN website.Hard copy of the intellectual work;RG (Personal ID Card) copy;CPF (Individual Taxpayer ID) copy;Copy of proof of residence.About 180 days.According to the amounts ​​of the remuneration table in the following link
Song Lyrics and Sheet MusicUFRJ School of MusicAccording to the form to be completed on the Music School website.Copy of the music sheet with all pages numbered and signed by the author(s); Copy for the songs with lyrics;Original proof of payment.About 24 business hours.BRL 15.00 (fifteen Brazilian reais) per registered song
Drawings Jewelry Characters Logos Paintings Printmaking Sculptures Lithographs Kinetic arts Photographs Paintings WatercolorsSchool of Fine Arts/UFRJAccording to the form to be completed on the UFRJ School of Fine Arts website.Two identical reproductions of the work in A4 format, which are legible and signed by the author(s), with a signature placed outside the space of the work or on the back (photograph always on the back);Original proof of payment.60 days.BRL 150.00 (one hundred and fifty Brazilian reais)
Audiovisual WorksNational Film Agency –ANCINEAccording to the form to be completed on the ANCINE website.It is not necessary to send a copy of the work to ANCINE, but the applicant should keep on file a copy of the work, GRU paid, and the licensing agreement, in case ANCINE requests it to be submitted;Upload of identification documents.  30 days.1. CONDECINE Title (exhibition rooms, home video, pay TV, open TV, and other markets): payable every five years for non-advertising works and every 12 months in the case of advertising works. 2. CONDECINE Teles (concessionaires, permit holders, and authorized telecommunication service providers that provide services that use means that can distribute audiovisual content): paid annually, until March 31, for services licensed until December 31 of the previous year. 3. CONDECINE Remessa (remittance abroad of amounts pertaining to income arising from the exploitation of cinematographic and video phonographic works, or from their acquisition or import): 11% rate paid to RFB (Brazilian Internal Revenue Service). *amounts ​in accordance with the Interministerial Ordinance, referring to the certificate to be issued for the authorization of the public communication of the work.
Studies Draft projects Projects Sketches Fine arts Other forms of expression and visual representation (*regarding agronomy, engineering, geography, geology, and meteorology)Federal Council of Engineering and Agronomy – CONFEA.According to the form to be completed on the CONFEA website.4 form copies;Proof of payment of the registration fee;Two copies of the intellectual work or of the respective perfectly clear photographs, checked against the original, with minimum dimensions of 0.18 m x 0.24 m;Declaration of assignment of property rights, signed by the author or by the co-authors of a work, with a certified signature, when the registration is requested in the name of a legal entity or individual, other than the author;Specific instrument of delegation of powers and with a certified signature of the author, when the registration of the work is required by a legal entity or through a representative.90 days.BRL 341.95 (three hundred and forty-one Brazilian reais, ninety-five cents)
SoftwareNational Institute of Industrial Property – INPIAccording to the form to be completed on the INPI website.1. Formal Documentation: Completed and signed Computer Program Registration Application Form;Proof of payment of GRU (fees payable);Authorization to copy the technical documentation;Articles of association if the holder is a legal entity;Authorization of the originating program holder if the program to be registered is a derivative;Documentation of assignment of property rights if the holder is different from the author of the program. 2. Technical documentation (two copies): Source code listing;Software specifications and flowcharts. *INPI requires that this data be recorded in PDF format, on a non-rewritable CD or DVD, and sent by the Post Office to the agency.About 08 days.BRL 185.00 (one hundred and eighty-five Brazilian reais)
Projects, works and technical works (*referring to Architecture and Urbanism)Council of Architecture and Urbanism of Brazil – CAUAccording to the form to be completed on the SICCAU system.Upload of intellectual works in digital format.  Up to 45 days.BRL 195.90 (one hundred and ninety-five Brazilian reais, ninety cents)

USA

STEPS OF REGISTRATION OF AUTHOR WORKS BEFORE THE COPYRIGHT OFFICE | USA
Preparation. Digital copy of the intellectual work to be sent by the Electronic Copyright Office (eCO) (literary, artistic, scientific work, digital content, computer programs or any other kind of intellectual creation)
Claim registration on the eCO platform. Completion of application, payment of fees, and submission of works. Possibility of registering up to 10 unpublished works.
Payment of Copyright Registration Fees. Payment of fees via credit card, debit card or ACH debit card according to the fee schedule[i]. Possibility of adding other fees depending on the type of service.
Issuance of Protocol and Case Number. Upon payment of the fee, copies of the work can be sent to the applicant.
Follow-up of Procedural Process. U.S. Copyright Office, part of the Library of Congress, based in Washington, D.C., carries out the registration and review process. For online application with digital filing that does not require mail, the average term is 2 months and can reach 7 months, and the application by sending a paper form may require up to 15 months.
Final Opinion of Process Examiner. At the end of the process, the Copyright Office forwards the certificate by mail according to the applicant’s address.

[1] It should be borne in mind that, although the Law includes software or computer programs among works protected by Copyright, it is an asset subject to a specific regulation (Law 9609/1998), which provides for a specific term of protection (50 years from January 1 of the year following publication), among other specificities..


[i] https://www.copyright.gov/about/fees.html

Fernando Borges

Fernando Borges

Associate Attorney at Drummond Advisors

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