Brazil Brésil Brasilien. Report Q182

Transcription

1 Brazil Brésil Brasilien Report Q182 in the name of the Brazilian Group by José Antonio B.L. FARIA CORREA (President), Lélio Denicoli SCHMIDT (General Reporter), Cláudio Roberto BARBOSA (Assistant Reporter), Alvaro Loureiro OLIVEIRA (Chairman Copyright Committee), Mariangela VASSALO (Vice-Chairman Copyright Committee) Database protection at national and international level Questions 1. Analysis of Current Legal Situation 1.1 Legislation Is there any legislation in your country dealing specifically with databases? If so, please describe it. No. 1.2 Definition of Database Is there any definition of the term database in your country's legislation or case law? If so, does it extend both to electronic and non-electronic databases? No. 1.3 Copyright Protection of Databases Subject Matter Does your country's law provide for copyright protection of compilations? If so, does it only cover collections of literary and artistic works or does it also cover compilations of data or material other than literary and artistic works? Yes, section 7, XIII and its second paragraph of the Brazilian copyright law 9610/98 provides for copyright protection of compilations. The copyright protection also cover compilations of data or material other than literary and artistic works Criteria of Protection If your country's law provides for copyright protection of compilations is the protection limited to compilations which by reason of the selection or arrangement of their contents constitute intellectual creations? Are there any supplementary criteria to selection and arrangement? What is the level of originality required for a compilation to be considered a work? Does hard work in gathering data, known alternatively as sweat of the brow, qualify a compilation as original? Yes. The protection is limited to compilations which by reason of the selection, arrangement or disposition of their contents constitute intellectual creations. The level of originality for a database to be considered a protected work is the same of all other works which have to bear at least a modicum level of creativity to be protected. Hard work in gathering data, alternatively known as sweat of the brow is irrelevant for the qualification of a compilation as original. 1

2 1.3.3 Scope of Protection What is the scope of copyright protection of a compilation? To which extent can a compilation be copied without infringing the copyright in the compilation? The scope of protection of a compilation is set by section 87 of the copyright Law which provides the exclusive right to authorize or prohibit the following acts in relation to the form of expression of the structure of a database: I. complete or partial reproduction by any means or process; II. translation, adaptation, rearrangement and any other modification; III. distribution of the original or copies of the database, or communication of the database to the public; IV. reproduction, distribution or communication to the public of the results of the operations referred to in item II of this Article. 1.4 Sui generis Protection of Databases The following questions do not apply to Brazil as there is no sui generis protection of compilations of data such as databases System of Protection and Subject Matter Does your country's law provide for sui generis protection of compilations of data such as databases? If so, is registration of the database required to secure sui generis protection? Does your country's sui generis system only cover databases which do not meet the criterion of originality or is there cumulative sui generis protection also for original databases protected by copyright? Criteria of Protection If your country's law provides for sui generis protection of databases what are the criteria of protection? If substantial investment is one of the criteria of protection, what is the level of investment required for an investment to be considered substantial? Rights granted and Scope of Protection If your country's law provides for sui generis protection of databases what are the rights granted to the database maker? If extraction and re-utilisation are covered by any right, how are these notions defined? What is the scope of the sui generis protection? If substantial part is relevant in determining the scope of protection, how is this concept defined? Limitations and Exceptions If your country's law provides for sui generis protection of databases are there any limitations or exceptions? If so, what are they (e.g. private use, scientific research, education, public security, government purposes)? Are there any compulsory licensing provisions under your country's sui generis protection regime? Duration of Protection How long is the duration of the sui generis protection? 1.5 Possible Alternatives for a sui generis System Unfair Competition Law Does your country have a law of unfair competition? If so, does it have a role in the protection of databases? If so, to what extent? Yes, our Industrial Property Law 9279/96 has provisions concerning unfair competition. The rules against acts of unfair competition can be applied in order to protect databases which can constitute trade secrets. 2

3 1.5.2 Other Means of Protection Does your country provide for any other means of protecting databases? If so, in which legal areas and by which mechanisms (e.g. contract law)? Yes. Contract law can provide protection for databases but it has limitations, since contractual terms are only valid for the parties in the agreement. 2. Proposals for Adoption of Uniform Rules 2.1 Legislation Should legislation be enacted to deal specifically with databases? If so, should national legislation be enacted or is there a need for an international treaty on the protection of databases? The Brazilian group considers that there is a need for an international treaty on the protection of databases. 2.2 Definition of Database If you think that legislation should be enacted to deal specifically with databases what should the definition of database be? Should it extend to both electronic and non-electronic databases? The definition of article 1 of the European Directive 96/9 concerning the legal protection of databases should be adopted. Such definition should extend to both electronic and non electronic databases. 2.3 Copyright Protection of Databases Do you think that copyright protection should be granted to databases? If so, what should the criteria of protection be? Do you think that the level of originality required for a database to be copyrightable should be low, so that sweat of the brow databases qualify as copyrightable? What should the scope of copyright protection be? Yes. Copyright protection should be granted to databases. However only original databases should be protected by copyright. The general level of originality of copyright should not be twisted to protect non original databases. Thus, sweat of the brow should not be a condition for protection of a database by means of copyright. A sui generis protection could be adopted to protect sweat of the brow databases. 2.4 Sui generis Protection of Databases System of Protection and Subject Matter Do you think that sui generis legislation should be enacted to protect databases? If so, should there be a registration system to secure sui generis protection? Should the sui generis system only cover un-original databases or should there be the possibility to obtain cumulative sui generis protection also for original databases protected by copyright? Yes. A registration system would not be appropriate, since the database is a dynamic work. There should be the possibility to obtain cumulative sui generis protection also for original databases protected by copyright Criteria of Protection If you think that sui generis legislation should be enacted to protect databases, what should be the criteria of protection? If you think substantial investment should be one of the criteria of protection what should be the level of investment required for an investment to be considered substantial? 3

4 The criteria of protection of article 7 of the European Directive 96/9 concerning the legal protection of databases should be adopted. The Courts should decide in each case the level of investment required for an investment to be considered substantial Rights granted and Scope of protection What rights should be granted to the database maker? If you think that extraction and reutilisation should be covered by the rights to be granted how should these notions be defined? If you think that substantial part should be relevant in determining the scope of protection, how should this concept be defined? The rights of extraction and re-utilisation should be granted to the database maker. The definitions of extraction and re-utilisation of article 7 of the European Directive 96/9 concerning the legal protection of databases as follows should be adopted as follows: a) extraction shall mean the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form; (b) re-utilization shall mean any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission. The first sale of a copy of a database within the Community by the right holder or with his consent shall exhaust the right to control resale of that copy within the Community; Public lending is not an act of extraction or re-utilization. 5. The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted Limitations and Exceptions Should limitations or exceptions be granted? If so, which ones (e.g. private use, scientific research, education, public security, government purposes)? Should there be any compulsory licensing provisions? Yes. Limitations and exceptions in similar fashion as determined by article 9 of the European Directive 96/9 concerning the legal protection of databases should be adopted as follows: Exceptions to the sui generis right Member States may stipulate that lawful users of a database which is made available to the public in whatever manner may, without the authorization of its maker, extract or re-utilize a substantial part of its contents: (a) in the case of extraction for private purposes of the contents of a non-electronic database; (b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved; (c) in the case of extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure. There should be no provisions for compulsory licenses Duration of Protection How long should the sui generis protection be? The term of protection should be of 10 years. 4

5 2.4.6 Assessment of existing sui generis systems If your country already provides for sui generis protection of databases, do you think the system should be revised? If so, why and in what ways? This question does not apply as Brazil does not have a system of sui generis protection. 2.5 Possible Alternatives for a sui generis system If your country does not have unfair competition rules or if your country's unfair competition law does not have a role in the protection of databases do you think your law should be changed, so as to provide database protection on the basis of unfair competition law? Should there be any other means of protecting databases which your country does not offer or not fully take into account? If so, which ones? This question does not apply. 3. Miscellaneous The Brazilian National Group consider important to have the protection of databases addressed in an international treaty so as to harmonize the current level and scope of protection. 5