BRAZILIAN COPYRIGHT OFFICE SEEKS AN ALTERNATIVE PATH ON IPR

UNCLAS SECTION 01 OF 03 BRASILIA 001355

SIPDIS

SENSITIVE
SIPDIS

STATE PASS USTR
GENEVA FOR USTR
STATE PASS USPTO
USDOC FOR 4332/ITA/MAC/WH/OLAC/MWARD
USDOC FOR 3134/ITA/USCS/OIO/WH/RD/SHUPKA

E.O. 12958: N/A
TAGS: KIPR ECPS BR
SUBJECT: BRAZILIAN COPYRIGHT OFFICE SEEKS AN ALTERNATIVE PATH ON IPR
ISSUES



1. (SBU) Summary. Recently, Econ and FCS personnel met with
officials at Brazil's Copyright Office (organizationally, located
within the Ministry Culture) to discuss Brazil's emerging policy on
IPR and digital inclusion issues. This meeting was to follow-up on
an earlier, June 7 session between U.S. Patent and Trademark Deputy
Director Stephen Pinkos and counterpart Brazilian policy level
officials. Our interlocutors outlined the full array of challenges
they faced, inter alia, resistance within Brazilian domestic
industry to paying royalties, bureaucratic and statutory obstacles
to the development of a balanced doctrine of "fair use," and, of
course, rampant piracy. (Notwithstanding Brazil's plethora of
well-known musicians, because of copyright piracy, we were told, no
more than 30 could make a living from musical royalties.) The
Ministry had established a network of cultural facilities which
artists could use for free, provided they licensed any works
produced there to the creative commons. Internationally, our
contacts complained of developed country dominance at the World
Intellectual Property Organization (WIPO) and stated that the idea
behind Brazil's proposed "Development Agenda" was to level the IPR
playing field. End Summary.


2. (SBU) On June 28, FSC Deputy Senior Commercial Officer, Econ
Counselor and Econ Assistant met with Marcel Alves da Souza, the
head of the Ministry of Culture's Copyright Office, and Angeline
Monteiro Prata, the Ministry's Copyright Manager, to learn more
about the workings of that office. Souza declared that the
Copyright Office was besieged on all fronts as private industry
sought to enforce its legal rights in the face of widespread piracy,
while government policymakers (in particular Minister of Culture
Gilberto Gil) actively worked to afford citizens greater access to
informational materials. Notwithstanding the Copyright Office's
best efforts, it was becoming increasingly difficult to reconcile
the conflicting demands, he stated.

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Payments for Use of Copyrighted Songs in Audio-Visual Works
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3. (SBU) Souza cited as an example the payment of fees to musical
copyright holders when their works were used in domestic Brazilian
films. In such cases, a private sector organization, RECADE, he
noted, was charged with collecting compensation from filmmakers.
However, the film industry balked at paying such monies, arguing
(incorrectly) that this was not the practice in the U.S. Indeed, he
continued, using that argument the film lobby had nearly gotten the
Brazilian Congress to enact legislation withdrawing the legal
requirement to pay compensation in these situations, though that
effort had ultimately failed. Further complicating the matter, was
the lack of transparency of RECADE itself, with a number of artists
alleging that it keeps for itself an undue share of the fees
collected on their behalf.

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Piracy and the "Fair Use" Doctrine
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4. (SBU) Discussion then turned to the issue of the scope of the
"fair use" doctrine in Brazil - i.e., the degree to which the public
could use minor portions of a copyrighted work without paying
royalties to the author. Souza stated that while the vast
disparities in income in Brazil militated in favor of an expanded
"fair use" doctrine, in fact, Brazil, as was the case in many other
Latin American countries, applied the concept more restrictively
than in the United States. Part of the problem, he observed, was
that statutory code, rather than common law, governed on this issue,
and even though the relevant statute had been enacted in 1998 in
many ways it was already out of date. The public's increasing use
of the internet meant that the statute needed to be reworked. To
help tip the scales in favor of reform, he observed, the Ministry
sought to organize civil society groups (like libraries) to lobby
for greater "fair use." However, the local IPR legal lobby
vigorously opposed this, he noted, notwithstanding the fact that it

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was practically impossible for rightholders to collect royalties for
such small-scale activity.
All that restricting the "fair use" doctrine did, he concluded, was
make the public insensitive to the difference between minor copying
and blatant piracy.


5. (SBU) The textbook example of this, Souza stated, was textbooks.
There were cases of enforcement entities catching students for
small-scale copying while true pirates - i.e., those who xeroxed and
sold entire textbooks - often got away scot free. The GOB realized
that if it could persuade the publishing industry to lower the price
of school books, then it might be able to reduce the economic
incentive for piracy. Hence, the GOB eliminated valued added taxes
on textbooks. Yet, the tax cuts did not result in lower prices,
Souza said, as the industry - noting the limited demand for
Portuguese-language publications - argued that its high prices
helped it cover high costs due to the lack of economies of scale.

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Digital Inclusion and Cultura Viva
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6. (SBU) Souza noted that Minister Gilberto Gil was a strong
advocate of accommodating intellectual property rights protection to
"the needs of development." In this vein, Gil has been outspoken on
issues such as free software and digital inclusion of disadvantaged
populations. Domestically, one program which the Ministry has taken
to implement this vision is "Cultura Viva," the principal element of
which is the establishment of various cultural centers throughout
the country where low-income artists could have access to studios,
internet connections, and other production facilities. Cultural
centers have been set-up - through contracts with local NGOs - in
such major cities as Sao Paulo, Rio de Janeiro, Salvador, and
Brasilia. The only requirement that the government levies on the
use of such facilities is that the artist license whatever they
produce to the creative commons. The idea is that providing young
artists a platform to create, Souza said, gives them the opportunity
to gain recognition - which can then translate into market
bargaining power. The most notable works which have come from these
cultural centers, he noted, have been innovative hip-hop routines
produced in Rio.

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The GOB's Development Agenda
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7. (SBU) Souza, Brazil's representative at the World Intellectual
Property Organization (WIPO),stated that the GOB felt that within
that entity the deck was stacked in favor of the developed
countries. The rich nations, he intimated, were able to buy votes
from the Third World by offering benefits like technical assistance
or even travel money and per diem. Hence, he said, the GOB and its
emerging country allies, had formulated the "Development Agenda" to
break the developed countries' hegemony over the discussion of IPR
issues. The "Development Agenda," he continued, was simply the
international component of the GOB's overall efforts to make IPR
policy more consistent with the needs of emerging nations.
International copyright protection should not be absolute, he
declared, and Brazil was intent on pushing this point in
multilateral fora. One example of how the status quo needed to
change, he observed, was the treatment of translations. Given that
so few people in Brazil spoke English, he noted, the issue of
protection of translated work had special significance for the GOB.
Why should a translated work receive full copyright protection, he
asked, if the copyright had already lapsed on the original work?

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Comment
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8. (SBU) Though the positions Souza and Prata espoused were in line
with the ruling PT party's stance on IPR, they took pains to make
clear that they were non-partisan. As civil servants, they would

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likely remain in their jobs, they said, even if the opposition PSDB
party (generally considered to be more business-friendly) were to
prevail in the October 2006 election. Indeed, in our chat with him,
Souza declared that the "Development Agenda" would remain high on
Brazil's priorities within WIPO for the foreseeable future.

Williamson