Tag: #copyright

The rise of counterfeits in the midst of e-commerce development – guidelines for combating counterfeit in Brazil

E-commerce refers to a type of business that is completely conducted through the internet, meaning from the selection of the product, choice of delivery address and payment method [1]. Its first records can be traced back to the 1970s in the United States of America and the 1990s in Brazil [2].

However, despite already being a very popular and widely used type of business, it was during the pandemic, due to its social and economic impacts, that we faced a “BOOM” in the online market.

People, with the most diverse services and products, began to use this alternative and cheaper medium to reach consumers and thus achieve a certain income.

During this period, considerable amounts of capital were directed towards the development of online operating systems that better met this new demand, creating a faster and less bureaucratic space.

In response to this new movement, the Director General of the World Intellectual Property Organization, Mr. Daren Tang, in an interview with CNBC in 2022, declared that this scenario would bring many positive and negative points to industrial property rights [3].

In TANG’s opinion, the advancement of e-commerce would bring easier ways for people to trade counterfeit products, however, on the other hand, companies that manage these platforms should face the problem with counterfeits seriously, being in contact with national governments to monitor and deal with this situation.

Despite this, for TANG, what this wave still brings is the creation of new opportunities for entrepreneurs, which, for the Director General, is fantastic.

Going even more deeply into this issue, in 2019, the EUIPO – European Observatory on Infringements of Intellectual Property Rights, together with the OECD – Organisation for Economic Co-operation and Development, published a study entitled “Misuse of E-commerce for Trade in Counterfeits” [4].

In this scenario, the National Council for Combating Piracy in Brazil (CNCP) has a Guide [5] and Handbook [6] of good practices and guidance for combating piracy in e-commerce.

In the complete report of the study, these were some of the main conclusions:

In 2020, as a consequence of the restrictions caused by the Covid Pandemic, there was an increase of at least 20% in online commerce compared to the traditional market.
Statistics observed during the period from 2017 to 2019 showed that at least 50% of the detentions in the EU would be of counterfeit products, of which 90% would have been sent by mail to the country; and
Most of the counterfeit products sold through the online market belong to the categories of perfumery and cosmetics, pharmaceutical products, and optical products.

In the documents, in order to help companies that work with e-commerce platforms to create a safe and transparent environment, the CNCP advises:

Validating the Seller’s CPF or CNPJ, with their complete identification, as well as proving their existence through a bank account, digital wallet, or associated payment methods.
Reserving the right of the Platforms to demand fiscal documents related to the accessory obligations of the sale of their products or services, under penalty of exclusion of the Seller user who does not meet this requirement; and
Creating a specific notification channel for cases of illegal product sales, with permission for consumers and intellectual property rights holders to access it.

The CNCP also advises those who use e-commerce to take a proactive stance towards these measures, as well as to always remain vigilant, working together with government agencies for protection.

In addition to this, those who work with this new form of commerce can still count on various private organizations with expertise in dealing with intellectual property protection issues, which can assist in creating a Policy for the Use and Protection of rights, as well as providing all necessary support to hold infringers accountable.

—

Author: Juliana Kaomy Mikado and Cesar Peduti Filho, Peduti Advogados.

Fonte:

[1] O QUE É E-COMMERCE E PARA QUE SERVE? In EXAME. Available at: https://exame.com/invest/guia/o-que-e-e-commerce-e-para-que-serve/ . Access on: Mar 18, 2023.

[2] Dr.E-coomerce consultoria em e-commerce. Available at: https://www.doutorecommerce.com.br/criando-um-e-commerce/aprenda-origem-e-o-que-e-e-commerce/#:~:text=O%20e%2Dcommerce%20nasceu%20em,1999%20com%20o%20site%20Submarino. Access on: Mar 17, 2023.

[3] RISE OF E-COMMERCE MAKES IT EASIER TO SELL COUNTERFEIT GOODS: WORLD INTELLECTUAL PROPERTY ORGANIZATION. In CNBC. Available at: https://www.msn.com/en-us/money/experts/rise-of-e-commerce-makes-it-easier-to-sell-counterfeit-goods-world-intellectual-property-organization/vi-AA11xPIS . Access on: Mar 17, 2023.

[4] OECD/EUIPO (2021), Misuse of E-Commerce for Trade in Counterfeits, Illicit Trade, OECD Publishing, Paris. Available at: https://doi.org/10.1787/1c04a64e-en . Access on: Mar 18, 2023.

[5] Guia: Boas práticas e orientações às plataformas de comércio eletrônico para a implementação de medidas de combate à venda de produtos piratas, contrabandeados ou, de qualquer modo, em violação à propriedade intelectual. Secretaria Nacional do Consumidor Conselho Nacional de Combate à Pirataria e aos Delitos Contra a Propriedade Intelectual Ministério da Justiça e Segurança Pública – Esplanada dos Ministérios 5º andar, sala 538, CEP 70064-900 – Brasília-DF. Available at: https://www.gov.br/mj/pt-br/assuntos/noticias/conselho-nacional-de-combate-a-pirataria-lanca-guia-de-boas-praticas-e-orientacoes-as-plataformas-de-comercio-eletronico/Guiaboaspraticaseorientacoesasplataformasdecomercioeletronico_compressed.pdf Access on: Mar 17, 2023.

[6] CARTILHA DE BOAS PRÁTICAS E-COMMERCE. Secretaria Nacional do Consumidor Conselho Nacional de Combate à Pirataria e aos Delitos Contra a Propriedade Intelectual Ministério da Justiça e Segurança Pública – Esplanada dos Ministérios 5º andar, sala 538, CEP 70064-900 – Brasília-DF. Available at: < file:///C:/Users/Juliana.kaomy/Desktop/Cartilha%20de%20Boas%20Pr%C3%A1ticas%20no%20e-commerce.pdf>. Access on: Mar 21, 2023.

—

Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.

If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.

#copyright #intellectualproperty

The difference between moral rights and copyrights in the Brazilian Legislation about authors of musical creations

The Brazilian legislation protects the creators’ rights as creations of the spirit, expressed by any means, as provided in Article 7 of the Law 9610/98. Differently from what happens in other countries, such as the United States, where there is the copyright institute, which is the legal protection that the author of a work has exclusively in relation to printing, reproduction or sale, the Brazilian Copyright Law is wider about the personal protection of the one who created the work. As determined by the professor Eliane Y. Abrão, the “author’s rights are a set of moral and patrimonial prerogatives, which interpenetrate when a literary, artistic and/or scientific work becomes publicly available”.

Thus, differently from Copyright, the Brazilian Author’s right has a double nature: moral rights of the author and property rights of the author.

The property rights are those related to the economic exploitation of the work, like the Copyright concept. The holder of the property right (which is not necessarily the one who created the work) may exploit it and receive the pecuniary fruits arising from this exploitation.

Moral rights, on the other hand, are linked to the person of the Author and link his name to his creation. Such rights, according to Article 24 of the Brazilian Law are considered personal and independent of any registration. Moreover, the moral rights are unrenounceable, inalienable, unseizable and imprescriptible. They are eternal and will always bind the creator to his creation.

The moral rights of the author consist, for example (i) the right to preserve his work as unpublished; (ii) to withdraw it from circulation, (ii) the right to claim authorship (known as paternity right), (iv) the right to care for the integrity or reputation of his work, among others.

Based on these moral rights, the Brazilian singer and composer João Gilberto, responsible for the creation of great Bossa Nova hits such as “Chega de Saudade”, filed a lawsuit against EMI, the record company that owns the Copyrights to the work. In the lawsuit, João Gilberto claims the ownership of the tapes of his first records, which were in the possession of the record company. To support such request the Plaintiff claimed the moral right to ensure the integrity of his work.

However, the Superior Court of Justice (STJ) understood that the possession of original recordings of a work are not within the scope of the author’s moral right. In addition, the STJ held that the record company, by having a valid contract with the artist, had the property right over the works, thus being the owner of the original tapes.

To support their decision, the magistrates argued that the tapes are “the physical support of the immaterial work created by João Gilberto. Therefore, they are phonograms that can be assigned by the author, according to article 49, item V, of the Copyright Law.”

Thus, the court’s understanding clarifies that the physical form of a work guarantees the possibility of exploitation, thus, it is considered as a Copyright, which belongs to the artist’s record company.

Such decision is important to exemplify the understanding of higher courts about the limits of the property and moral rights of the author since the moral rights are more subjective and not necessarily concern the physical form of the work, especially the musical work, which does not need its original physical form (in this case, the first recording tape) for its integrity to be guaranteed.

—

Author: Joana Mendes Maneschy, Associate Lawyer at Peduti Advogados.

Source: Direito moral do compositor não garante posse de fitas originais gravadas, diz STJ

BRASIL. Lei 9.610/98, 19 de fevereiro de1998. Lei de direito autoral.

Disponível em:
http://www.planalto.gov.br/ccivil_03/leis/l9610.htm

ABRÃO. Eliane Y. Direitos de autor e direitos conexos. 2a. edição, revista e ampliada. São Paulo: Editora Migalhas, 2014;

—

“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”
“Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.”

#copyright #moralrightsofauthor #musicalcreation

Unfair competition in the Fashion Industry

The 1st Reserved Chamber of Business Law of the São Paulo Court of Justice (TJ-SP) dismissed the appeal brought by one company of the Apparel Industry accused of copyright infringement.

Copyright infringement is a pinnacle problem in the fashion industry. It’s not new that the fashion design sector suffers with unfair competition, but there are legal mechanisms to restrict this practice.

The lawsuit was filed by two related companies against one Brazilian luxury clothing brand.

The plaintiffs companies complained that they had clothes that were being imitated by the defendant company.

Although the plaintiffs companies do not have industrial design registrations of their creations, the following rule provided by TRIPS Agreement is applicable:

Article 25 Requirements for Protection:

“2. Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.”

In the first instance, the judge interpreted that the act of the Defendant was a practice of parasitic competition, taking benefit from the goodwill and reputation of a Brazilian luxury clothing brand.

On appeal, the defendant maintained that the similarities come only from the observance of global trends.

However, the Court maintained the sentence, based on the understanding that the rules of the article 195 of Brazilian Industrial Property Law (Law nº. 9.279, of May 14, 1996) can be applied to the case at hand.

According to the rule laid down in article 195, items IV and V, of the IP Law:

“A crime of unfair competition is committed by the one whom:

uses another person’s advertising phrase or sign, or imitates it, in order to create confusion among the products or establishments
uses, improperly, another person’s trade name, title of establishment, or insignia, or sells, displays, offers for sale, or has in stock a product bearing these references;”

On June 02, The Justice Court of São Paulo, in a unanimous decision, dismissed the Appeal filed by Defendant. The Court maintained the position of the first instance in the sense that the Defendant, when imitating garments, parasitically took advantage of the plaintiff’s brand.

The unlawful conduct practiced by the defendant allows the presumption of damage to the plaintiff’s morals due to the violation of the industrial property right.

The Defendant can still appeal the decision but, according to the understanding of the majority jurisprudence, the chances of success are reduced.

—

Author: Sheila de Souza Rodrigues, Associate Lawyer at Peduti Advogados.

Source: TJSP reconhece a contrafação de modelos de roupas como prática de concorrência desleal (TJSP recognizes the counterfeiting of clothing models as a practice of unfair competition)

—

#copyright #fashionindustry #intellectualproperty #unfaircompetition Trademark

The importance of copyrights on the music industry: the Taylor Swift case

Can you imagine creating a whole body of artistic projects and being prohibited of reproducing it? That’s exactly what is happening with the singer Taylor Swift, all because of a conflict related to copyrights.

It is known that there are two types of copyrights on the American system: the first, the musical work copyright, that is basically the musical composition – covering underlying music and lyrics of a song – and the sound recording copyrights, that covers the actual recording of a song, also known as a master recording of a musical composition.

While the singer is the owner of the musical work copyrights of her first six albums, Big Machine, her last record label, is the owner of the sound recording copyrights, which means that there are certain limits to the singer’s rights on the soundtracks.

The Section 106 of the U.S. Copyright Act itself relates to that, providing exclusive rights to the owner of the copyright:

“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following (…)

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

Analyzing the Law, it is clear that the record label, as said by the 6th item above, is responsible for the authorization for Taylor Swift to perform the soundtracks of her first six albums publicly by means of a digital audio transmission, which can definitely difficult the singers’ events and decisions on her songs.

The Record Label also receives a part of the soundtracks’ streaming profits.

Taylor Swift is now rerecording her oldest songs as new masters in order to have full rights on the soundtracks.

This case shows how important it is to know and protect every aspect of the copyright.

—

Author: Maria Luiza Barros da Silveira, Junior Associate at Peduti Advogados.

Source: Seeing “Red”: Taylor Swift and the Dueling Copyrights in a Song

Source: Taylor Swift: entenda por que cantora refaz álbuns com cópias de si mesma

—

#copyright #musicindustry #taylorswift

An overview of The Directive on Copyright in the Digital Single Market

The Directive on Copyright in the Digital Single Market¹ aims to harmonize some points of the Copyright Law of the European Union, hardening penalties for violations of copyright to guarantee greater protection to the owners of intellectual works published on the internet.

For the moment, the Directive is awaiting final approval by the Council of the European Union and after its publication in the Official Journal of the EU the Member States will have two years to transpose the new rules into their national law.

Among many discussions that have arisen from the Directive, two articles have gained extreme repercussion due to the changes that may rise from them in the way in which copyright is treated by the Member States of the European Union.

The articles 11 and 13 – now corresponding to articles 15² and 17³ due to the last changes inserted in the Directive – which received the name ‘link fee’ and ‘upload filter’, respectively.

The Article 11 (now Article 15) is intended to tax news aggregators (such as Google News) for disclosing links to news available in another website. On the other hand, the article 13 (current article 17) provides responsibility for the platforms that disclose copyright protected works without the consent of its creator.

In other words, if the platform user infringes the copyright of third parties when posting the content, the responsibility will fall directly on the platform itself.

If artists and content creators welcomed the proposed measures to increase the protection of their rights, opposing groups, led mainly by companies like Google and Facebook, have already firmly opposed the Directive.

The main issues

Mainly, there can be indicated two problems that compromise the way which content is nowadays disseminated over the internet.

First, in relation to the so-called “upload filter”, there is a need for the platform to previously analyze the content that is posted by its users, thus configuring a prior censorship.

Among the most affected by the article 13 is the YouTube video platform, which has been ostensibly opposing the directive’s approval and encouraging its users to do the same, as noted in the ‘European copyright: there’s a better way’⁴ manifesto, disclosed by Google, owner of the platform.

An overview of The Directive on Copyright in the Digital Single Market

Effectively, although Youtube already adopts a strict policy for copyright protection, if the Directive is approved in the terms in which it is proposed, it is quite possible that the videos made available by the platform will be previously analyzed more accurately before of its placement to the public.

Furthermore, it cannot be forgotten that the platform’s discretion will unequivocally cause problems for content creators, who will constantly need to make complaints about deleted videos on the platform due to alleged copyright infringement, causing the service to not continue the way it currently does.

On the other hand, in relation to the implications of the so-called “link fee”, it is already possible to observe its effects in countries like Spain and Germany, in which, regardless of the directive’s approval, local governments have already decided to tax news aggregators . In Spain Google News was discontinued due to the implementation of this fee⁵.

In this point it is important to highlight that a study ordered by the European Commission analyzed the effects of the application of this tax in Spain and Germany. As a result, the study revealed that newspapers benefited from the services provided by news aggregators, expanding their visibility, and attracting the public to consume their services⁶.

However, it is important to note the version of the Directive adopted in March 2019 contains specific provisions that oblige Member States to protect the free upload and sharing of works for the purposes of citation, criticism, analysis, caricature or parody.

This change addresses the portion of the most vigorous complaints against the first versions of the Directive’s texts, as it ensures that memes and GIFs can continue to be shared freely.

Conclusion

The measures proposed by the Directive to increase copyright protection on the internet have the potential to drastically change the way that content is disseminated today.

Despite the legitimate and expected preservation of copyrights on the internet, the difficulty of applying the measures proposed by the Directive comes up against both the interests of companies that will be most affected by the Directive and the users themselves, who are not willing to give up the achievements raised over the years with technological advances.

There is a need to balance the wishes of users and interested companies with the preservation of copyright on the internet, adopting measures that efficiently protect such rights without significantly altering the way content is disseminated and consumed on the internet.

It is important to highlight that although still restricted to the Member States of the EU, the Directive may reflect on the way other countries located outside the European Union deal with the protection of copyright on the internet.

—

¹ Full text available on:

^{https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019L0790&from=EN}

² Article 15 – Protection of press publications concerning online uses – […] 5. Member States shall provide that authors of works incorporated in a press publication receive an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers.

³ Article 17 – Use of protected content by online content-sharing service providers – […] 4. If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have: (a) made best efforts to obtain an authorisation, and (b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event (c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).

^{4 https://blog.google/outreach-initiatives/public-policy/european-copyright-theres-better-way/}

^{5 https://www.theguardian.com/technology/2014/dec/11/google-news-spain-to-close-in-response-to-tax-on-story-links}
^{6 https://www.asktheeu.org/en/request/4776/response/15356/attach/6/Doc1.pdf}
—

Lawyer Author of the Comment: Carlos Eduardo Nelli Principe

#copyright #European Union #law

Does purposely destroing a work of art infringe copyright laws?

In mid-August, 2020, Romero Britto, a renowned Brazilian artist, became a trending topic on social media, for being involved in a quarrel in an art gallery in the USA, where he was holding a photo session.

In the video, it is possible to see that a woman approached the artist holding one of his porcelain sculptures and accusing him of mistreating the employees of her restaurant. Then, the woman threw the sculpture on the floor and left Mr. Britto incredulous.

However, what if that happened in Brazil? Would have the woman committed a copyright violation? The answer is affirmative, because the destruction of a work of art implies an offense to the author’s moral rights.

The author of a work of art has both economic and moral rights.

Economic rights are ensured by article 28 of the Copyright Law (Law 9610/98) and guarantees that authors have the right to economically exploit their intellectual creations, through their publication, use or reproduction.

In turn, moral rights are provided for in Article 24 of the Copyright Law and are understood as “existential subjective rights”, as they have no economic content. By protecting the author’s personality materialized in the intellectual work, the author’s existential subjective right assumes a very personal character, being considered a personality right.

Among the moral rights of an author, we highlight the right to the integrity of the work, which is the author’s ability to oppose any modification of the work or the practice of any act that, in any way, could harm or affect it, as an author, in his/her reputation and honor.

Therefore, when breaking the sculpture of the artist Romero Britto, the woman did not destroy a mere porcelain object, but the artist’s own intellectual creation, the spirit of the artist embodied in it and the projection of the personality of its creator. And, if the situation had occurred in Brazil, she could be held liable for violation of the Copyright Law.

—

Lawyer Author of the Comment: Thaís de Kássia Rodrigues Almeida Penteado

Source

Headline: Restaurant owner smashes artwork after artist allegedly mistreats employees.