[A2k] Brazil Passes Law Regulating Copyright Collecting Societies Passes in Brazil - It Revamps the Whole System

Ronaldo Lemos ronaldolemos01 at gmail.com
Mon Jul 22 07:35:42 PDT 2013


Hello Philippe, I will work on a translation of the bill and post it to the
list.

Best regards,

Ronaldo


On Mon, Jul 22, 2013 at 9:12 AM, Philippe Aigrain (perso Wanadoo) <
philippe.aigrain at wanadoo.fr> wrote:

> Congrats Ronaldo. Great job. If you have a translation of the bill's
> text in English, will be very useful (we have a European directive
> proposal in legislative process that includes collecting societies
> governance issues). In particular, I am particularly interested in
> whether there are transparency / open data requirements for teh
> statistical distribution of distributed sums, for how much goes to
> various types of right holders (inidividual authors and performers,
> assignees, heirs), etc.
>
> Best,
>
> Philippe Aigrain
>
> Le 22/07/2013 02:57, Ronaldo Lemos a écrit :
> > Dear list members,
> >
> > A few months ago I asked for your support to send me materials and cases
> > regarding how copyright collecting societies had been supervised and
> > regulated worldwide. I received a lot of contributions, with some
> extremely
> > useful ones.
> >
> > Accordingly, as promised, it is time to give back. Please find blow a
> short
> > report about the major changes in Brazilian law regarding the supervision
> > and organization of collecting societies.
> >
> > The list's contributions were invaluable to the final steps of the
> debate.
> >
> > Best regards,
> >
> > Ronaldo
> >
> >
> >
> > *Congress Passes New Law Regulating Copyright Collecting Societies in
> Brazil
> > *
> >
> > The Brazilian Congress  has approved landmark legislation regulating and
> > changing the structure of the Copyright Collecting Societies (CCSs) in
> > Brazil. The new law, which was drafted as a result of the Parliamentary
> > Inquiry Commission (PIC) that investigated collecting societies,
> > establishes a supervision role to the Ministry of Culture in regard to
> > CCSs. The law, as well as portions of the PIC’s report, were originally
> > drafted by a team led by professor Ronaldo Lemos, at the Center for
> > Technology & Society at Fundacao Getulio Vargas in Brazil (see Ars
> > Technica’s coverage of the report here:
> >
> http://arstechnica.com/tech-policy/2012/05/copyright-cops-behaving-badly/
> ).
> >
> > It was then improved throughout the intensive contributions given by a
> > number of major artists in Brazil, such as Gilberto Gil, Caetano Veloso,
> > Roberto Carlos, Carlinhos Brown, Milton Nascimento and many others, who
> > supported the new bill.
> >
> > The approval of the bill is a successful conclusion to more than 10 years
> > of debate in Brazil regarding the problems and role of collecting
> > societies. This debate involved the academia (such as the Center for
> > Technology and Society’s Open Business III, and A2K Brazil projects,
> > supported by IDRC and OSI respectively), as well as artists, civil
> society,
> > and a number of individuals concerned with the lack of transparency in
> the
> > whole system.
> >
> > The rapporteur of the project was Senator Humberto Costa, and other
> > prominent supporters of the bill include congress member Jandira Feghali,
> > as well as Senators Lindberg Farias, Randolfe Rodrigues and Pedro Taques.
> > The law was finally passed by Congress on July 10th, and now awaits
> > presidential sanction. Political analysts believe the president will
> > approve the law as it is, with no vetoes, especially after she had a
> > 30-minute audience with singer Roberto Carlos, one of the most famous in
> > musicians in Brazil and supporter of the, of whom the president declares
> > herself as a fan.
> >
> > For more information, please see below the translation of the article
> > published by Professor Ronaldo Lemos at Folha de Sao Paulo’s website (a
> > major newspaper in Brazil), describing the whole approval process, and
> some
> > of the changes to be implemented (translation follows below and the link
> to
> > the original article is here:
> >
> http://translate.google.com.br/translate?hl=en&sl=pt&u=http://musica.uol.com.br/noticias/redacao/2013/07/04/opiniao---nova-lei-que-fiscaliza-o-ecad-e-vitoria-dos-artistas.htm
> > ):
> >
> >
> > New law that oversees Copyright Collecting Societies in Brazil is a
> victory
> > for artists
> >
> > Ronaldo Lemos *
> > Special to UOL/Folha
> >
> > Brazil is very close to create a body with the authority to supervise its
> > copyright collecting societies, centralized at the organization called
> > “ECAD”, through Bill 129, originating in the Senate. With that the
> country
> > should end more than 20 years of a tragic exceptionalism: Brazil is one
> the
> > only countries in which the entity that collects and distributes
> copyright
> > does not have any form of oversight or regulation. This happened since
> when
> > president Collor abolished in 1990 the organ that was competent to such
> > supervision, which was never recreated.
> >
> > Even the United States, a country where there is competition between
> > collecting societies, have a complex system of supervision to its
> "Ecads",
> > including defense mechanisms of artists and competent courts to oversee
> > abusive prices.
> >
> > In Brazil the situation was worrying: there is an entity that has a
> > monopoly on its activities, but no supervision whatsoever. This violates
> > the basic principle that there should never be an unregulated monopoly.
> >
> > Distortions generated by this situation penalized many Brazilian artists
> > and creators. In their majority, even those at the top of the hall of
> fame,
> > such as Roberto Carlos, Gilberto Gil, Ivan Lins, Caetano Veloso, among
> many
> > others, felt uncomfortable and dissatisfied with an entity that collected
> > more money each year, but operated without transparency, and with a poor
> > standard of service that could not be compared to that offered by similar
> > organizations in other countries.
> >
> > *"The internet has propelled a huge number of new artists, DJs in
> > electronic music artists, indie bands, projects homemade experimental
> > music. None
> > of them felt represented by ECAD. " *
> >
> > In addition, the directors of ECAD and its 9 associations had been in
> their
> > same functions for almost a lifetime. Many are in the same job for 20 or
> 30
> > years without renewal or change.
> >
> > Finally, the entity suffered from problems of representativity. The
> > internet has propelled a huge number of new artists, DJs in electronic
> > music artists, indie bands, home ased experimental musicians etc. None of
> > them felt represented by ECAD. And that perception was real: the system
> of
> > internal representation was obscure and obsolete. Instead of a democratic
> > criterion (one person one vote), plutocratic criterion was adopted
> > (societies that collected more money had more votes). This meant that
> only
> > two associations (among the existing 9) concentrated all the
> > decision-making at ECAD, shielding it not only from external oversight,
> but
> > also regarding internal audits, which could be have been done by the
> > artists themselves.
> >
> > Thus, complaints that ECAD was a black box multiplied. They culminated in
> > the creation of the Parliamentary Inquiry Commission (PIC) of the Senate
> > (which is worth mentioning, I participated by invitation of the Senate
> as a
> > lawyer expert on the subject, helping to draft the law and the final
> > report). The bill which now is approved originates in the work of the
> PIC,
> > which presented a detailed report pointing all problems at ECAD. Another
> > important element is that the work of the PIC helped inform Cade, the
> body
> > responsible for economic defense in Brazil, which ended up condemning
> ECAD
> > of forming a illegal cartel and of abuse of dominant economic position.
> >
> > *"With the passage of the bill by the Senate, Brazil now has the chance
> to
> > have one of the most advanced laws from the comparative perspective on
> the
> > global collection and distribution of copyright." *
> >
> > That was the spark that was lacking for the artists to articulate around
> > this important cause. With this, the artists became immediately
> > protagonists in the debate on the Senate bill. Well organized, they
> > presented several suggestions for modification and improvement of the
> > original draft, which were accepted and incorporated into the bill,
> > improving the draft.
> >
> > With the passage of the bill by the Senate, Brazil now has the chance to
> > have one of the most advanced laws from the comparative perspective on
> the
> > global collection and distribution of copyright.
> >
> > The project brings many achievements and solutions, many sophisticated
> and
> > well-designed. For example, states that the associations that make up the
> > ECAD now have all the same number of votes (one vote per membership).
> This
> > ingenious solution makes the artists decide to join each of them not by
> > political reasons, but for reasons of efficiency. Before the artists
> > basically become affiliated to only two associations, precisely those who
> > controlled the whole system (the others were associations that had
> > practically no decision-making power).
> > *5 POINTS OF THE NEW LAW***
> >
> > *1) The associations of composers and performers that make up the ECAD
> must
> > be qualified by the Ministry of Culture, proving that they meet the
> > conditions to administer effectively and transparently.**
> >
> > 2) The management fee charged by ECAD cannot exceed 15% of the amount
> > collected by way of royalty payments.
> >
> > 3) Radio and TV will be required to make public the complete list of
> works
> > that were broad cast, and the price to be paid must reflect the reality
> of
> > the proportional usage of the songs. Today, this distribution is effected
> > by sampling.
> >
> > 4) Creation of a unified register of works that avoid distortion of data
> > and duplicate titles. Authors can monitor the management of their right
> > over the internet.
> >
> > 5) The associations that make up the ECAD can only be addressed by the
> > copyright holders, ie, composers and performers. They have fixed term of
> > three years with the right to reelection. *
> >
> > As of now, the association to offer the best services and the lowest
> price
> > (and the smaller administration fee) will attract more artists and
> > creators. The
> > signal to decision-making is no longer a political signal (how many votes
> > one association has), erroneous in principle, but becomes a signal of
> > efficiency.
> >
> > In addition, the Ministry of Culture will have the prerogative to oversee
> > ECAD and even revoke its license to operate in the event of severe abuse
> > (considered the principle of due process). The new law requires audits to
> > ensure transparency, efficiency, modernization and that artists and
> > creators must be the center and most important element in the collection
> > and distribution of royalties.
> >
> > It makes sense. In other countries artists have access to the statement
> of
> > their due rights to receive royalties electronically, like a bank
> account. In
> > Brazil, something like that was still far from being implemented.
> >
> > The law also states that the collection of copyright must be in
> proportion
> > to their use. It makes sense. A restaurant that plays music only at
> > lunchtime, for three hours per day, must pay in proportion to such use. A
> > restaurant which, in turn, is open 24 hours and play music throughout
> this
> > period should pay more.
> >
> > Before this change everyone paid the same price. If the restaurant played
> > one song during the month, it would have to pay the “full” price on the
> > whole repertoire of songs from ECAD. It was an all or nothing system. One
> > could either pay for the full repertoire, or could not publicly perform
> > music legally at all.
> >
> > The list of achievements of the law that oversees ECAD is huge. It is
> > practically a new dawn for artists and creators Brazilians. Many of them
> > involved in the struggle for the improvement of the system for over 15
> > years. It was a fight that seemed inglorious. But now, thanks to the
> > leadership and coordination occurred among the artists themselves, it is
> > about to become victorious with the forthcoming presidential sanction.
> The
> > creator wins, as well as the new generation of artists who had not being
> > feeling represented by ECAD. And wins society as a whole, which watches
> in
> > first row the possibility of ECAD finally start getting in tune with the
> > values of the 21st century.
> >
> >
> > ** Ronaldo Lemos is a lawyer and professor of intellectual property in
> > Brazil.*
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> >
>
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