Brazil: How does the EU’s new Copyright Directive compare with Brazilian law?

May 20, 2019

On March 26 2019, the European Parliament voted in favour of the new EU Copyright Directive for the digital single market. As 73% of young European internet users listen to music, watch TV series and films or play games online, one of the Copyright Directive's changes concerns how online content sharing services should deal with copyrighted content.

Now, platforms that rely on user-uploaded content are required to obtain an authorisation from rights holders to make copyrighted content available to the public.

In the absence of a deal, online content-sharing service providers may be held liable for unauthorised acts of communication to the public of copyright-protected works, unless they are able to demonstrate that they have made a real effort to obtain a licence and acted expeditiously to stop users from accessing unauthorised content. Online platforms of more than three years and with an annual turnover over EUR 10 million must also make best efforts to prevent future uploads of the notified works.

In Brazil, Law 12,965/14 stipulates that internet providers can only be held liable for damages resulting from content generated by third parties if, after a specific court order, they do not take any steps to make the infringing content unavailable in a timely manner.

However, this liability exemption depends on a specific legal provision, which so far has not been enacted. Accordingly, Brazilian courts have steadily been applying Brazilian Copyright Law and dismissing copyright infringement claims if, after communication, the internet provider has removed the infringing content from its platform or blocked access to it.

As seen with the EU's GDPR and a similar Brazilian law approved in August 2018, European laws can influence Brazilian policy. As a result, considering the fast-growing consumption of online content by Brazilians, it is very important to follow closely any discussions generated by Article 17 of the new EU Copyright Directive in Brazil and to consider how it may impact Brazilian lawmakers.