4 Remarks on the Relations between Intellectual Property and Cultural Diversity in Brazil’s Digital Environment: An Analysis of the Civil Framework of the Internet

(Original in Portuguese)

Giuliana Kauark & Paula Cruz[1]

An internationally valid legal instrument, the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CDCE) states the purpose, among others, of legitimating the development of public policies related to the protection and promotion of the diversity of cultural expressions. Ten years after its approval, the Parties are still facing the challenge of implementing it and, particularly, of adapting it to the digital age context. This implies taking a closer look at the 2005 UNESCO Convention in relation to the subject of intellectual property rights.

With the rapid development of information and communication technologies, the production and circulation of new cultural contents have popularized on the Internet, as the reproduction and sharing of contents traditionally protected by author’s rights or related rights have become exponentially easier. As a result, the old debate about the just measure between the protection of these rights, on the one hand, and the right to cultural diversity, on the other hand, has gained new frames and significant relevance in the context of the digital age. As authors’ and related rights legislation gets extended to the digital environment, the circulation of and the access to cultural contents on the Internet get further restricted, and new forms of online cooperation sometimes end up being criminalized.

Controversies involving the creation of instruments designed to stop online “piracy” have marked the recent history of intellectual property. On the international arena, the Anti-Counterfeiting Trade Agreement (ACTA) is a case in point, as it devoted a special focus to the question of intellectual property infringement taking place in the digital environment. Although today the ratification of ACTA seems to be a goner, its provisions evidence how tensions between the private interests of authors’ and related rights holders and the public interest in accessing and participating in cultural life have played out in the Internet space.

We argue that Internet regulation emerges in the digital age as a jurisdiction field that has a more or less direct implication on the “intellectual property rights versus cultural rights” debate. Depending on how such regulation is framed, it may either strengthen one side or the other. Alternatively, however, it may offer possibilities for better reconciling the two.

Considering the complexity of these relations, in this article we shed light on the controversy surrounding intellectual property rights and cultural diversity in Brazil’s digital environment through a multidisciplinary analysis of the Brazilian Civil Framework of the Internet (Marco Civil da Internet – MCI, Law No. 12.965/14) (Brasil 2014), which entered into force in June 2014. Having being called an “anti-ACTA” bill by the international press during its drafting stage (Moody 2011), the MCI establishes principles, guarantees, rights and duties attached to the use of the Internet in Brazil. To which extent, however, does the Brazilian MCI de facto oppose the so-called “anti-piracy laws”, and to what extent does it contribute to the promotion of the diversity of cultural expressions in Brazil?

To better understand these questions, we first situate the creation of the Brazilian MCI in the historical context of intellectual property international regulation, and then comment on a few points that help to compare the MCI to some anti-piracy laws. Finally, we analyse the MCI’s provisions concerning the role of the State in promoting digital culture vis-à-vis the current need for rethinking cultural policies in the digital age.

I – International Regulation of Authors’ and Related Rights

The need to reconcile the private interests of authors’ and related rights holders with the public interest of having broad access to culture is not a new issue in Western history. Strictly speaking, the notion of authorship itself as an individual process, which arises from the author-subject’s originality and creativity, is a social phenomenon particularly connected to the development of Modernity (Alves 2010; Barthes 2004). Initially linked to the invention of the press, the notion of author as a “genius-artist” developed in Europe during Romanticism, establishing the conceptual framework that have underlain the international regulation on authors’ rights since the 1886 Berne Convention to this day. Among the fundamental characteristics of the notion of authorship dominant since then, Alves (2010: 511) points out “the artist’s elevation, the valorisation of originality, and the new value imputed towards the individual’s affective and emotional experience”. Thus, the value once attributed to copy and imitation was redirected to the figure of the “author-subject”, giving rise to the concept of “author-owner”.

It is important to point out, however, that at its origins, the intellectual property protection system sought to establish a privilege concession system on the commercialization of literary works, without the idea of authors’ rights being an object of consideration. The Statute of Anne (1710) is frequently cited as the first instrument created with this purpose. Although it had been designed to ultimately protect English booksellers’ and publishers’ commercial interests, such Statute already established that the concession of their copyrights should be temporary. The validity of those rights was limited to 14 years, and could be extended for other 14 years should the author still be alive by the end of the initial term. Once the longest term had expired, however, the work would immediately fall into public domain, wherein it was supposed to finally fulfil the declared objective of the Statute, that is, to “stimulate learning”. In other words, the need for balancing private and public interests was already present at the origins of the English copyright system, which considered to be fair to grant the copyright holder a maximum term of no more than 28 years.

However, as this system developed internationally, such balance started to lean more and more towards the protection of private interests. The recrudescence of protection standards – either by prolonging validity, broadening the scope, or extending guardianship to interpreters, executors and producers, for instance – can be observed, with few exceptions, in the various revisions applied to the Berne Convention, as well as to other conventions, such as the Rome and Geneva conventions of the World Intellectual Property Organization (WIPO), and the UNESCO Universal Copyright Convention.

It is beyond our objective to detail the extent to which these instruments have contributed to strengthening the intellectual property international system. To mention but one example, ever since the Berne Convention it is recommended that national legislations protect most cultural works under intellectual property rights for at least 50 years after the author’s death. Contra the Statute of Anne, which established a maximum acceptable protection term, the Berne Convention established thus minimum international protection standards, with countries being able to increase levels of protection nationally, but not the opposite. In Brazil, the authors’ and related rights law (Law No. 9.610/98) stipulates a 70-year period of protection after the author’s death. Only then can the work fall into public domain.

Reinforcing this trend, even though the text approved in the last review of the Berne Convention (1971) was kept practically unaltered, the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) imposed minimum protection standards on the member countries of the World Trade Organization (WTO). However, unlike the Convention, which inherited the modern valorisation of the ‘genius-artist’, the TRIPS Agreement introduced and consolidated a new justification narrative for the very notion of “intellectual property rights” (May 2010). Such narrative holds that the maximization of the protection of intellectual property rights results in more investments in innovation and, consequently, in greater economic growth and social welfare (“the more protection, the better” thesis).

Moreover, in the WTO, non-compliance with the requirements stipulated in the TRIPS Agreement may give rise to trade sanctions. Depending on the WTO Dispute Settlement Body’s rulings, trade sanctions may be applied so as to affect not necessarily the cultural industries of the country accused of infraction, but rather more economically relevant assets in relation to that countries’ overall export activities (i.e. cross-retaliation). Apart from restricting public access to culture with implications on social and human development, the impacts of the TRIPS Agreement therefore extend to the economic realm, and can be felt more deeply in developing countries (Correa 2000).

In contrast to this trend, however, new possibilities of creating and reproducing cultural works emerge and gain strength with the popularization of digital technologies. Perceived as a new dimension of public space, the Internet has become the locus of demands for free access to information, knowledge and culture (Lessig 2004). Two main arguments constitute the basis of these demands. The first one attempts to debunk the “the more protection, the better” thesis by differentiating material goods from immaterial goods. While the former constitute scarce goods that can justify higher control of access, the latter bear a non-competitive and non-rival nature. This means that when a person shares and makes use of an immaterial good this does not prevent other persons from making use of it too. In order words, such non-competitive and non-rival nature places immaterial goods in the economic category of public goods. The second argument is conceptual in nature. It criticizes the modern notion of author and its “transfer” to the digital age (Alves 2010), and rather defends the necessity of reviewing the limits of authors’ rights and related rights, so as to take new forms of authorship into account and (re)contextualize the phenomenon of authorship in contemporaneity (Sass 2015).

Despite these arguments, intellectual property lobbying – mainly by major copyright holders (i.e. major corporations), who de facto constitute the major beneficiaries of this system – led to the creation of legal instruments designed to fight practices considered to infringe intellectual property rights in the digital environment. National “anti-piracy laws” around the world include the US 1998 Digital Millennium Copyright Act (DMCA), the 2011 draft bills Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), and France’s 2009 Hadopi (High Authority for the Dissemination of works and Protection of Rights on Internet) Law. Among the international treaties, the 1971 Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms; the 1996 WIPO Copyright Treaty; and the 1996 WIPO Performance and Phonograms Treaty, all precede – and inform – the creation of ACTA, which was designed “to permit effective action against an act of infringement of intellectual property rights which takes place in the digital environment”.

Negotiated in secrecy by a selected group of countries headed by the United States, the European Union and Japan, it can be stated that one of ACTA’s main objectives was to extend the “the more the protection, the better” thesis to the digital environment (Cruz 2014). In Article 27, for example, which dealt with “effective implementation in the digital environment”, the Agreement provided for civil and criminal enforcement, establishing punitive and corrective measures which included injunctions and compensations, as well as imprisonment and monetary fines “high enough to discourage future infractions” (Art. 24).

Although it has not entered into force, ACTA reveals how the discourse on fighting against online piracy is framed today, and the concrete measures some countries are willing to adopt in this regard. It also brings to light the attempt to consolidate a new baseline for intellectual property protection standards internationally, one that ultimately favors the economic interests of major corporations, and moves this system further away from a more just and inclusive balance vis-à-vis cultural rights in the digital environment. As Silva (2015: 137) concludes,

In fact, under the pretext of updating them, the objective of the new treaties ended up extending classical protection to new actors, particularly corporations. (…) The maximization of the protection aimed at favouring the maintenance of powerful multinational oligopolies, which think of themselves as holders of cultural control. (…) changes in authors’ [and related] rights legislation were deemed necessary, making it increasingly restrictive, not in order to encourage creation, but to maintain the status quo. The result was an international legal system at odds with the new culture.

In Brazil, debates on the detrimental effects of ACTA on the safeguard of civil rights and freedom of expression in the digital environment came up in the aftermath of demands for an Internet usage regulation. Against the draft bill on virtual crimes (which became the Brazilian Law No. 12735/12), digital rights advocators argued that “all the efforts of public debate around that draft bill, which aims to regulate the Internet from a criminal point of view, should turn to the civil regulation of the network” (Lemos 2007, emphasis added).

II – The MCI and Authors’ and Related Rights in Brazil

Although being approved only after the Brazilian criminal framework of the Internet, the MCI (Law No. 12.965/14) entered into force in July 2014, following a long process of popular consultations and lively debates within the Brazilian society. As already said, the MCI establishes principles, guarantees, rights and duties for the use of Internet in Brazil. For some (e.g. Moody 2011; Moreira 2014), it is actually a counterpoint to the idea of an “anti-piracy law”. In this section, we make a few remarks about this interpretation. With no intention whatsoever to provide conclusive thoughts on the matter, our intention here is solely to highlight and analyse some significant points regarding the relations between the MCI and the question of authors’ and related rights in the digital age.

A – The (Non-) Reference to Authors’ or Related Rights

Forthwith, one can note that there are only three direct references to authors’ and related rights in the MCI: two of them appear where it refers to the responsibilities for damages resulting from contents generated by third parties (Art. 19), and the last one of them appears in the final provisions (Art. 31). We shall deal with these articles further on. For now, what we would like to stress is the non-(explicit) inclusion of the authors’ and related rights issue among MCI’s basic principles (Art. 3). By not explicitly including the guarantee of these rights among its guiding principles, and by relegating it to a single paragraph[2] (right after Article 3), we argue that the Brazilian MCI indeed seems to oppose to the so-called anti-piracy laws, whose main guiding principle consists precisely in guaranteeing the protection of authors’ and related rights.

On the contrary, as the eight principles listed in Article 3 show, the MCI rather prioritizes the principles of guaranteeing freedom of expression, communication and expression of thoughts, and of protecting privacy and personal data. The guarantee of authors’ and related rights is hence put in second place. Although the MCI does not at all imply that this principle should not be respected (as reinforced in Art. 31), we argue that the non-reference to these rights among this law’s basic principles places the Brazilian MCI away from the international trend of maximizing authors’ and related rights protection standards to the detriment of the public interest.

B – Responsibility for Contents and Freedom of Expression

Section III of the MCI addresses the issues that are most directly linked to the regulation of authors’ and related rights. From the start, Section III stipulates that Internet connection providers shall not be held accountable civilly for damages resulting from contents generated by third parties (Art. 18). As for Internet application providers,[3] it states that “with the purpose of assuring freedom of expression and preventing censorship,” third parties may be held accountable civilly, but only if after a specific court order, the provider does not take appropriate action to make the alleged infringing content unavailable online. The only exception to this general provision concerns violations of intimacy resulting from unauthorized disclosure of images, videos or other materials that include private nature nudity or sexual acts (Art. 21).

For the purposes of the present analysis, two points are worth noting in regard to such provisions. First, the MCI assures that only by judicial order may the application provider be obliged to take down the content that supposedly infringes authors’ or related rights. Moreover, the order “shall contain, under penalty of nullity, the clear and specific identification of the allegedly infringing content, so as to ensure the unequivocal localization of the material” (Art. 19 § 1st). In order words, as Wachowicz and Kist (2014) point out, not only does the MCI provide greater legal certainty to cases involving allegations of intellectual property infringements online, it also discourages the practice known as “notice and take down”, which consists in withdrawing the content after simple notice issued by the alleged victim.

Related to this, the second worthy noting point refers to the MCI’s understanding of the “notice and takedown” itself, as can be inferred from the law’s text. This practice has been fiercely combated by digital rights activists, who claim that it actually consists in an indirect form of violating freedom of expression, and ultimately of imposing a kind of censorship. Digital rights activists argue that, in the absence of appropriate regulation, Internet providers usually withdraw contents that allegedly infringe intellectual property rights right after simple notification, and without sufficient evidence, as to avoid possible future legal actions that may force them to pay compensations. Without previous legal examination, however, this kind of action can end up favouring arbitrary and unfounded notifications. By requiring the need for court orders in order to protect freedom of expression, and avoid censorship on the Internet, the MCI seems to be in conformity with the understanding that the “notice and take down” practice can produce negative effects on the safeguard of civil rights on the Internet. Since it prioritizes the benefit of doubt vis-à-vis intellectual property infringement claims, the MCI stands in radical opposition to the preventive measures usually prescribed by anti-piracy laws.

This point is further reinforced in the second paragraph of Art. 19. According to it, “[the] application of the provision in this article regarding infringements to authors’ or related rights depends on specific legal provision,[4]which shall respect the freedom of expression and other guarantees as provided for in Art. 5 of the Federal Constitution” (italics added).

Furthermore, the MCI advances the protection of civil rights in the Brazilian digital environment as it states that, also in this case, only by court order can Internet providers be obliged to provide users’ information to third parties (Art. 10) – a rule that also applies to foreign corporations (Art. 11).

C – Guarantees against Internet Connection Suspension

Among the rights assured by the MCI to Brazilian Internet users, the right to not have Internet connection suspended – “except by virtue of debt directly resulting from its use” (Art. 7 IV) – stands out. The importance of this provision for the analysis at hand relates to the fact that, when preventing Internet connection from being disrupted due to any reason other than the lack of payment directly resulting from its use, the MCI makes it difficult to Internet providers to resort to that strategy as a means of punishing intellectual property rights offenders. Such retaliation was, for example, provided by the French Hadopi Law, which allowed for the suspension of the Internet connection of users who would make use of online file sharing platforms either to download or to share contents protected by authors’ or related rights (Gunthert 2009).

Before analysing the MCI’s provisions that directly address the question of cultural diversity, two observations regarding its relations to the matter of intellectual property should be made. Concerning the responsibility for contents created by third parties, it should be noted that the MCI does not provide any impediment should the provider decides to take down a given content. That is to say that the Internet provider is not obliged by law to keep a given content on air until a court order is issued, even though he/she is covered by law should he/she decides to do so. As a result, possibilities remain open for the alleged victim to bargain to the provider as to get content prematurely taken down of the Internet. If this is to be successful, then there is no need to present a court order. One can easily suppose that this loophole in the law may possibly be exploited mainly by major corporations in their efforts to restrain free access and criminalize collaborative network arrangements in the digital environment.

The last point refers to the MCI’s penultimate article (Art. 31), which resumes to the provisions established in the second paragraph of Article 19, and specifies that “in the case of authors’ or related right infringement”, and until a new law is adopted, the liability of the Internet application provider for damages arising from content generated by third parties “will continue to be disciplined by the authors’ right legislation applicable on the date this Law enters into force” (Art. 31). The fact that this article actually finalizes the text of the MCI (the following article solely deals with its date of implementation) should not be underestimated. Although it does not invalidate the points we have raised above regarding the discrepancies between the MCI and the so-called anti-piracy laws, to some extend Art. 31 seems to redress the absence of explicit reference to authors’ rights in Art. 3, as its final words emphasize the need for compliance with authors’ and related rights legislation, and redirect omitted points to the ambit of the reform of that legislation.[5]

This second loophole in the law makes it possible for intellectual property infringement issues related to civil rights on the Internet to be ultimately regulated in Brazil by its authors’ rights legislation – not by the MCI. As an example, it is relevant to mention the debate on the issue of liability in peer-to-peer sharing (P2P) practices, in which users’ computers exchange information directly one to each other. After being deleted from the original text of the MCI draft, this debate has shifted to the authors’ rights reform agenda. This was mainly due to the fact that Art. 105-A of the new authors’ right law intends to make the “notice and take down” practice allowed in cases of P2P sharing. This implies a risk for the consolidation of the understanding that such practice may have negative implications on freedom of expression and civil rights in the digital environment. Depending on future developments of this debate, this may also weaken the applicability of the MCI in relation to the new authors’ right law.

III – The MCI and the Promotion of Cultural Diversity within the Digital Environment in Brazil

As we have already suggested, it is impossible to reflect upon authors’ rights without connecting them in essence to the right to access to culture. This dimension precisely seeks to guarantee every person the right to participate freely in cultural life. Addressing the access to, as well as of promotion of, cultural diversity in the digital environment in Brazil thus implies raising the subject of cultural rights. As Farida Shaheed (apud Coelho 2011: 22) defends:

the full respect to human rights and, in particular, cultural rights, creates an environment that allows for and offers the guarantee of cultural diversity. At the same time, the respect for cultural diversity, its promotion and protection is fundamental to guarantee the full respect of cultural rights.

Cultural rights are an integral part of human rights, as pointed out in both Art. 27 of the Universal Declaration of Human Rights (ONU 1948) and Art. 15 of the International Covenant on Economic, Social and Cultural Rights (ONU 1966). According to Art. 27, cultural rights refer to one’s freedom to participate in cultural life, to follow or adopt lifestyles of his/her choice, to exercise his/her own cultural practices, to benefit from scientific advancement, and to have moral and heritage protection linked to the artistic or scientific productions of which he/she is the author.

With the exception of authors’ rights, which have been extensively studied and codified, the conceptualization and codification of cultural rights are unclear. The UN Committee on Economic, Social and Cultural Rights (2009) advises that, through the conceptual improvement of the right to participate in cultural life, it is possible to ensure a comprehensive character to cultural rights in which the dimensions of both free participation, and equal access and contribution to cultural life of the community are included. Thus,

Cultural rights in their negative status are understood as the right for any individual to participate, passively or actively, in equal conditions, and without any previous discrimination, impediment or censorship, in the cultural life of his/her choice, defining his/her own identifications (or identities), provided that his/her participation does not infringe other human rights, nor restrict the fundamental freedoms that are guaranteed to all human beings. In their active status, the individual has the right to participate in cultural policy decision-making processes. Finally, in regard to their positive status, we affirm that cultural rights shall guarantee: the protection of both tangible and intangible cultural heritage; a reality where the most varied cultural goods and services are offered; freedom of expression in one’s own mother tongue with due recognition by society; financial support to produce and disseminate culture; besides the guarantee of moral and patrimonial rights of one’s own works (Kauark 2014: 124).

Brazil is a signatory to the abovementioned 1948 Declaration and 1966 Covenant. This is reflected in Art. 215 of Brazil’s 1988 Federal Constitution, which reads: “The State shall ensure to all citizens the full exercise of cultural rights and the access to the sources of national culture, and shall support and foster the appreciation and diffusion of cultural expressions.” However, cultural rights are still a reality only for the few in Brazil. Minority groups, such as Afro-descendants, indigenous peoples, gypsies, persons with disabilities, homosexuals, and women still face great difficulties in participating freely in the cultural life of their choice. This deep inequality of condition to enjoy cultural rights in Brazil is due to several reasons: persistent regional disparities, discrepancies between private and public education; limited access to higher education; a lack of cultural spaces; insufficient protection of cultural heritage, among others.

In the digital context, new deficits further complicate the guarantee of cultural rights in Brazil, including the limited access to digital technologies, challenges in digital inclusion, insufficient knowledge on civil rights on the Internet, and – before the MCI came into effect in 2014 – a lack of regulatory frameworks in tune with those rights.

A – The (Almost Explicit) Reference to Cultural Rights

The MCI comprises 32 articles, seven of which explicitly mention the word “culture”. Two of them demand special attention: articles 4 and 27.

Clause II of Article 4 states that “[the] discipline of Internet usage in Brazil is aimed at promoting: access to information, knowledge, and to the participation in cultural life and in the conduction of public matters” (emphasis added). We can infer from that that the MCI deals with cultural rights as one of its purposes, recognizing such rights not only in their negative status, but also in their positive status.

Considering that the guarantee of cultural rights – particularly the guarantee of effective participation in cultural life in the digital environment – must be reflected into factual positive actions by the State, it is crucial to understand what the MCI stipulates in the chapter on the role of the public powers.

B – The Role of the Public Powers in the Promotion of Digital Culture

Article 27 is the only article of the Brazilian MCI that exclusively addresses the cultural realm. It points out that “public initiatives aimed at promoting digital culture must: promote digital inclusion; seek to reduce inequalities, especially regional discrepancies regarding the access to and the uses of information and communication technologies; and foment the production and circulation of national content”. For the purpose of this article, and inspired by the World Report on the 2005 UNESCO Convention, below we analyse the MCI with regard to three main topics surrounding the relations between the diversity of cultural expressions and the digital environment (Kulesz 2015): access to culture; creativity; and cultural industries.

The access to culture is one of the most commented (and celebrated) issues related to the emergence of digital technologies. Its potentials are nevertheless often overestimated by those who believe that the rise of digital technologies would necessarily lead to the expansion and democratization of virtually unlimited access to cultural contents beyond geographic borders, institutional and infrastructural barriers imposed by local cultural policies, and beyond cultural industries’ oligopolistic control. As Silveira (2011) points out, such discourse is to be found among most “techno-utopic” commentators. On the other hand, “realists” emphasize prevailing obstacles in accessing culture online, asymmetries in digital inclusion, limited infrastructure, and market concentration.

According to the Index on Censorship (INDEX 2014), Brazil is the fifth most connected country in the world, and the second largest user of Facebook and Twitter. The number of people with access to the Internet in Brazil has exceeded 50% of the country’s population, with over 100 million users – a number that has been growing rapidly with the cheapening of smartphones and recent connection improvements. Access to the Internet is, however, still very unequal in Brazil. Contra 97% of high-income households (Class A), only 6% of low-income households (Classes D-E, 75% of the population) are connected to the World Wide Web. Besides income inequalities, asymmetries between users’ education levels, ethnic groups, professional segments, places of origin (following the urban / rural divide), age groups, etc. are also reflected in the Brazilian Internet access landscape (INDEX 2014).

Regarding the access to and the use of information and communication technologies, the MCI establishes that public initiatives shall seek to reduce inequalities, mainly regional inequalities. The MCI is limited, however, to the territorial distribution dimension, disregarding generational, educational, and economic variables that also impact the access to and the use of digital technologies.

Moreover, when addressing the issue of inequalities in accessing the diversity of cultural expressions in the digital environment, one must look beyond merely quantitative evidence, such as the number of houses with microcomputers or the number of inhabitants with smartphones, and look also at qualitative analyses dealing with the question of digital inclusion.

Digital inclusion is explicitly mentioned in Article 27 of the Brazilian MCI. Put simply, the digital inclusion component refers to people that know how to use the Internet – which some authors consider to be not only an economic or cognitive problem, but also a cultural one. Manuel Castells (apud Lemos 2011), for example, classifies Internet users as interacted and interagents, with the difference between the two being the user’s opportunity to take advantage of the social, economic, and cultural benefits provided by the digital technologies.

Before such a vast range of possibilities, however, very often governmental measures and policies, notably in Brazil, direct their attention to compensatory actions (Bonilla & Oliveira 2011), which results in increased number of interacted users, but barely help to form interagents. Today, besides guaranteeing Internet connection and training users to become interagents, public policies aimed at expanding the access to cultural diversity in the digital environment must focus on some key topics. The concentration of Internet applications in the hands of a few foreign corporations versus insufficient investments in the development of innovative, dynamic national actors on the digital market is a case in point. Equally noteworthy are the issues of little linguistic diversity on the web, the lack of a regulatory framework for recommendation algorithms, and data and information surveillance on Internet users’ consumption habits and preferences. All these factors negatively impact cultural diversity online, as they contribute to the homogenization of the supply and circulation of cultural goods and services on the Internet. These central issues are, nevertheless, disregarded by the MCI.

Another crucial topic here is that of artistic creativity. Opportunities resulting from the rise of digital technologies in varied artistic processes are opening up in many different directions. New formats have been created in several sectors. In the audio-visual sector, films for small formats such as tablets and cell phones have been developed; in the performing and visual arts sector, new creations in the digital arts, interactive arts, and in the use of amplified reality tools that complexify aesthetic experiences are now in rapid growth. Simultaneously, production costs have been significantly reduced with the proliferation of computer software and digital platforms that have revolutionized the creation, edition, and dissemination of cultural contents, something particularly evident in the music sector. Furthermore, digital technologies have expanded the participation of persons with disabilities in cultural life, as they have enabled the creation of cultural products that are already designed to digital applications such as reading, audio description, and translation to sign language applications.

In Brazil, obstacles in this sense relate above all to a lack of technical training and expertise for artists and creators to be able to make plenty use of digital tools both in creative processes and in promoting accessibility. Besides that, there is a serious discrepancy and discontinuity among Brazilian cultural public policies as far as to address the promotion of digital culture in terms of artistic creation. This trend is reinforced by the MCI, which apparently does not take this question into account.

As for the MCI’s advances, maybe the most important refers to the principle of net neutrality. This principle aims to guarantee the isonomic treatment of “any data packages, without any distinction whatsoever as to content, origin and destination, service, terminal or application” (Article 9). By establishing that all information shall circulate at the same speed and in the same conditions on the Internet, the MCI thus hinders the possibility of favouring certain webpages and services. As Wachowicz and Kist (2014) observe, “[the] idea was to prevent large corporations from lobbying Internet servers so as to have their webpages or any form of product offered on the web propagated at a faster speed than their competitors.” Preserving and ensuring net neutrality as a principle (Article 3 IV) ultimately involves the will to guarantee universal and unlimited access to the Internet. This has positive implications on the issue of digital inclusion we addressed above. Furthermore, it is worth noting that the violation of the net neutrality principle could put artistic creativity at risk. As Silveira (2011: 56-57) illustrates:

It would have been practically impossible to create a YouTube or even a BitTorrent protocol if, at the beginning of the Internet, Telecom operators had been able to filter the traffic of information or decide to block protocol data packages or applications that were unknown or unauthorized by their commercial policy. The opening towards innovation without authorization by governments or corporations is destroyed when the infrastructure controller has the power to tell what can or cannot go through his network.

Finally, the third topic under our analysis here regards the changes affecting the cultural industries in the digital age. Some of these changes are rather well-known, such as the increased interactivity and direct communication with the public via social networks. Others, however, are more recent and complex, and include the creation of new business models – such as the streaming system that has had a significant impact on the audio-visual sector (through Netflix, for instance) and on the phonographic sector (through Spotify, for instance) – and the opening up of new markets in cyberspace – which in turn leads to extensive revisions of financing policies for cultural productive chains and of intellectual property legislations.

The question of how to stimulate and regulate national cultural industries in face of the challenges brought by digital technologies have triggered the most fruitful debates on the 2005 UNESCO Convention. These debates are closely related to the “intellectual property versus piracy” discussion we addressed above. As far as the analysis of Article 27 of the MCI is concerned, we can see that it is clearly oriented towards stimulating the production and circulation of national content. Initiatives in this sense are still incipient; however, as the recent creation and launch of a kind of “Brazilian Netflix” with the aim of providing nationally-produced audio-visual contents (Ministério da Cultura 2015) signals, there seem to be an attempt to update cultural and communication policies to account for some of the changes brought by digital technologies and, at the same time, to make them compatible with the MCI provisions.


In this chapter we made some remarks upon the relations between Internet regulation, intellectual property rights, and cultural rights in Brazil through the analysis of the MCI. Our main goal was to shed light on some impacts of the MCI on the promotion of cultural diversity in Brazil’s digital environment.

As we have shown throughout the two previous sections, the advances brought about by the MCI in relation to the search for a better balance and coexistence between authors’ and related rights and cultural rights are undeniable. In spite of some loopholes, the MCI does oppose to the so-called anti-piracy laws in various regards, and stands away from the international trend in intellectual property rights governance, which has resulted in the maximization of those rights’ protection standards.

As far as the promotion of cultural diversity in a broad sense is concerned, the inclusion of cultural rights among the MCI’s fundamental objectives enables a greater State role in Brazil’s Internet regulation, as well as mobilizes social pressure towards its implementation. However, its rather limited provisions regarding the access and digital inclusion issues, together with the disregard to other factors impacting the online access and promotion of diverse cultural expressions in Brazil, lead us to fear that both governmental and non-governmental actors of the cultural production chain are still far from a more comprehensive update of cultural policies in the digital age. This is reflected in the weak transversatility of the MCI in relation to the objectives of the 2005 UNESCO Convention.


Alves, M.A.S. (2010) ‘O autor em deslocamento: do gênio romântico às criações colaborativas em rede’, in Congresso Internacional Deslocamentos na Arte, Ouro Preto, Belo Horizonte: Programa de Pós-Graduação em Filosofia da UFMG; Programa de Pós-Graduação em Filosofia da UFOP; ABRE: 507-515.

Barthes, R. ([1984] 2004) ‘O rumor da língua’; trad. Mario Laranjeira (2004), São Paulo: Martins Fontes.

Bonilla, M.H.S. & Oliveira, P.C.S. (2011) ‘Inclusão digital: ambiguidades em curso’, in M.H.S. Bonilla & N.D.L. Pretto (eds.). Inclusão digital: polêmica contemporânea, Salvador: EDUFBA.

Brasil (2014) Marco Civil da Internet (Lei nº 12.965/14), <http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2014/lei/l12965.htm> (accessed 06 October 2016).

Câmara dos Deputados (2013) Projeto de Lei 6117/2009. <http://goo.gl/kACBQJ> (accessed 06 October 2016).

Coelho, T. (2011) ‘O Novo papel dos droits culturels, entrevista com Farida Shaheed’, Revista Observatório Itaú Cultural, 11: 15-26.

Correa, C.M. (2000) Intellectual Property Rights, the WTO and Developing Countries: the TRIPS agreement and policy options. London: Zed Books; Penang: Third World Network.

Cruz, P. (2014) Os Estados Unidos e a agenda da propriedade intelectual: hegemonia em questão. 183 f. Dissertação (Mestrado em Relações Internacionais) – Universidade do Estado do Rio de Janeiro, Rio de Janeiro.

Gunthert, A. (2009) ‘A lei HADOPI: vigiar e punir a Internet’, Le Monde Diplomatique (Portuguese edition). <http://goo.gl/tZsDWk> (accessed 06 October 2016).

Kauark, G. (2014) ‘Os direitos culturais no Plano Nacional de Cultura’, Políticas Culturais em Revista, 7(1): 119-135. <https://goo.gl/8xa59U> (accessed 06 October 2016).

Kulesz, O. (2015) ‘Les défis du numérique’, in UNESCO, Organisation des Nations Unies pour l’éducation, la science et la culture. Re | Penser les Politiques Culturelles : 10 ans de promotion de la diversité des expressions culturelles pour le développement / Rapport mondial Convention 2005. Paris: UNESCO.

Index on Censorship (2014) Brasil: nova referência global em internet? Liberdade de expressão digital no Brasil. <https://www.indexoncensorship.org/wp-content/uploads/2014/06/2brazil-internet-freedom_print_BR.pdf> (accessed 06 October 2016).

Lemos, A. (2011) ‘Prefácio’, in M.H.S. Bonilla & N.D.L. Pretto (eds.) Inclusão digital: polêmica contemporânea, Salvador: EDUFBA.

Lemos, R. (2007) ‘Internet brasileira precisa de marco regulatório civil’. <http://goo.gl/5MoqPo> (accessed 06 October 2016).

Lessig, L. (2004) Free culture: how big media uses technology and the law to lock down culture and control creativity, New York: Penguin.

May, C. (2010) The Global Political Economy of Intellectual Property Rights: the new enclosures, 2 ed., New York: Routledge.

Ministério da Cultura (2015) Ministros da Cultura e das Comunicações estabelecem pauta comum. <http://www.cultura.gov.br/noticias-destaques/-/asset_publisher/OiKX3xlR9iTn/content/id/1281759> (accessed 06 October 2016).

Ministério da Cultura (2016) Aberta consulta pública para Instrução Normativa. <http://goo.gl/GPZHBr> (accessed 06 October 2016).

Moody, G. (2011) ‘Brazil Drafts an “Anti-ACTA”: A Civil Rights-Based Framework For The Internet’. <https://goo.gl/6WMoFw> (accessed 06 October 2016).

Moreira, K. (2014) ‘Marco Civil Brasileiro e sua diferenciação para SOPA, PIPA e ACTA (leis antipirataria)’. <https://goo.gl/kyIzyQ> (accessed 06 October 2016).

ONU – Organização das Nações Unidas, Comitê de Direitos Econômicos, Sociais e Culturais (2009) Observación General nº 21: Derecho de toda persona a participar en la vida cultural (artículo 15, párrafo 1a, del Pacto Internacional de Derechos Económicos, Sociales y Culturales), Genebra.

ONU – Organização das Nações Unidas (1948). Declaração Universal dos Direitos Humanos.

ONU – Organização das Nações Unidas (1966). Pacto Internacional dos Direitos Econômicos, Sociais e Culturais.

Sass, L.B. (2015) ‘Autoria na Sociedade Informacional: Fim do Gênio Criador?’, in M. Wachowicz (ed.) Direito Autoral & Marco Civil na Internet. Curitiba: Gedai Publicações.

Silva, G.C. (2015) ‘Obras Fonográficas, Sociedade Informacional e a “Evolução” do Direito Autoral’, in M. Wachowicz (ed.) Direito Autoral & Marco Civil na Internet, Curitiba: Gedai Publicações.

Silveira, S.A. (2011) ‘Para além da inclusão digital: poder comunicacional e novas assimetrias’, in M. H. S. Bonilla & N. D. L. Pretto (eds.) Inclusão digital: polêmica contemporânea, Salvador: EDUFBA.

UNESCO – Organização das Nações Unidas para Educação, Ciência e Cultura (2005) Convenção sobre a Proteção e a Promoção da Diversidade das Expressões Culturais.

Wachowicz, M. & Kist, V.A.W. (2014) ‘Marco Civil da Internet e Direito Autoral: uma breve análise crítica’, Boletim Gedai Setembro 2014. <http://goo.gl/zN9NMh> (accessed 06 October 2016).

  1. Giuliana Kauark is Ph.D. candidate in Culture and Society at the Federal University of Bahia (UFBA), researcher at the Multidisciplinary Centre of Studies on Culture and at the Observatory for Cultural Diversity. Paula Cruz is Ph.D. candidate in International Relations at the Pontifical Catholic University of Rio de Janeiro (PUC-Rio), researcher at the BRICS Policy Centre.
  2. “The principles expressed in this Law do not exclude others provided for in the Nation’s legal framework related to the matter or in international treaties adhered to by the Federative Republic of Brazil”.
  3. Defined as “the set of features that can be accessed to by means of a terminal connected to the Internet” (Art. 5 VII).
  4. In this regard, it is worth mentioning that in February 2016, the Brazilian Ministry of Culture (MinC) launched two public consultations through which Brazilian citizens were able, within a 45-day period, to send suggestions of improvements to two normative instructions. Both these normative instructions aim at regulating the country’s author’s rights legislation regarding the collective management of those rights on the Internet. As MinC explains, “[the] first of them shall establish specific provisions for the activity of authors’ and related rights collecting in the digital environment by collective-management associations and by the collecting entity”. The second one “concerns users’ duties in regard to the reproduction of works and phonograms that are inserted in other works or audio-visual productions” (Ministry of Culture 2016).
  5. The need for modernizing Brazil’s authors’ rights law (Law 9.610/98) in face of the popularization of digital technologies has raised extensive debates in the Brazilian society since 2004. As a result, the Ministry of Culture launched two public consultations, one in 2010 and one in 2011, with the aim of improving the draft of the new authors’ rights law. After a series of modifications, the Draft Bill is currently being analysed by two committees in the Brazilian Parliament: the Culture Committee (CCULT) and of the Committee on Constitution and Justice and Citizenship (CCJC) (Câmara dos Deputados 2013).

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