A lot is said about how the internet is the real enemy “of copyrights” and consequently trivializes these rights; but, is it really?
We continue to see the possibility of the Internet Draft Bill (Marco Civil da Internet) being voted. Sometimes I have even thought, ´´now it will happen´´ and then it didn’t. Once again, the media reported a real possibility of the voting process occurring this week, which is why I decided to discuss the theme a little further, this time, to focus on the issues related to information made available and copyright protection.
In the current economic and social scenario, the internet has become an essential tool for enabling main human activities, with the possibility of practicing simple researches, price comparisons, and commercial and financial transactions. The virtual world has enabled us to simultaneously interconnect to people located anywhere on the planet. Thus, the internet, you could say, has a larger coverage than the actual press. We have increased its importance, especially in people’s lives, with the emergence of legal relations based on cyberspace, and the integration of commercial, cultural, educational and economic purposes, among others.
I´d like to reflect a bit on the legal issues related to cyberspace, since technological development has exponentially enabled the use of very distinct contents in the electronic environment. A lot is said about how the internet is the real enemy “of copyrights” and consequently trivializes these rights; but is it really?
Entering the actual topic I proposed, it is worth mentioning the principle guidelines applicable to the net, in chapter I of the Preliminary Provisions of the Draft Bill:
(I) Internet use discipline in Brazil is based on respect to the freedom of expression fundamental, as well as: II – human rights, personality development and the exercise of citizenship in digital media; VI – the social purpose of the network;
(II) Internet use discipline in Brazil has the following principles: I – guaranteeing freedom of expression, communication and thought manifestation, according to the Constitution; VI – accountability of the agents in regards to their activities according to the law; Sole paragraph. The principles expressed in this law do not exclude others provided for in the Brazilian legal system related to the matter, or international treaties that the Federative Republic of Brazil is part of;
(III) Internet use discipline in Brazil has the following objectives: II – promote access to information, knowledge and cultural life participation as well as conducting public affairs;
(IV) The interpretation of this Law will consider, in addition to the fundamentals, principles and objectives provided for, the internet´s characteristics, uses and particular customs and their importance for the promotion of human, economic, social and cultural development.
I stopped now, and before going on with this article, remembered how Law has evolved (a reflection of our evolution) and should, in time, adapt to the technological innovations. My memory while reflecting upon the need for Law to evolve with technological innovations – of course without losing sight of the constitutional guarantees governing our legal system – brought out the case which occurred in the early phases of the network in Brazil. On the occasion, there was an indemnity claim for a copyright breach about a site that was launched in Brazil comparing book prices. Nowadays it is not possible to conceive the possibility of consumers/Internet users being deprived of the indisputable benefit provided by this service. See how here I have not gotten into the merit of how the reproduction of the book preface so costumers may have information and decide about purchases on the internet, in fact, is not protected by the copyright law. What counts in the example mentioned, is the importance of materializing abstract tension in practical life cases, which should support the legal world finding resources among some of these fundamentals, principles and objectives elected by the legislature, as relevant to internet use in the country. It is what we call a collective interest sphere: freedom of thought expression, freedom of expression, access to knowledge and information, among others, which reaffirm our constitution with guarantees that are widely consecrated. On another hand, there is the individual interest sphere, where constitutional guarantees are given to intellectual creations, maintaining intellectual property rights as the driving force for creative activities.
Although the pro-collective guidance of the draft bill is clear when balancing powers, since the draft Bill principles reinforce this (welcoming our Constitution) it is true that the cyberspace, as mentioned, still causes questions. A regime that is an exception to the Constitution would not be successful to regulate what goes on in the internet. And it really couldn´t.
In regards to this topic, the chapter with Preliminary Provisions separately provides for three categories: fundamentals, principles and objectives. There is no doubt regarding the distinction between principles and objectives, however, the distinction or segmentation between the fundamentals and principles category is not clear. Would the fundamentals be a type of ethos of the legislation structure, with a purely informative function, unlike the principles, which guide the interpretative activity of the Draft Bill? We do not know. And we don’t know, what will be the practical function of this distinction in the courts.
Well, the first major and widely discussed aspect is network neutrality. Brazil prohibits the pursuit of traffic shaping. This technique, which has been used since the late nineties, degraded the speed of data packages transmitted in protocols typically used in non-authorized sharing of music files and movies. See the Bill Draft below:
Art. 9 The party responsible for transmitting, switching or routing has the duty to treat any data packages equally, without distinctions per content, origin and destination, service, terminal or application. §1 The discrimination or degradation of the traffic will be regulated by a Decree and may only arise from: I – technical requirements that are essential for adequate provision of services and applications; and II-emergency services prioritization. § 2 In the event of discrimination or degradation of the traffic referred to in § 1, the responsible party mentioned in the caput must: I – refrain from causing damage to users, according to art. 927 of the Civil Code; II – act with proportionality, transparency and equality; III – previously inform users in a transparent, clear and descriptive enough manner, about the management and traffic mitigation practices adopted; and IV – offer services in non-discriminatory commercial conditions and refrain from practicing anticompetitive conducts. § 3 When providing internet connection, whether charged or free, as well as during transmission, switching or routing, it is forbidden to block, monitor, filter or analyze the contents of the data packages.
Perhaps one of the most significant aspects of the new system proposed for the Draft Bill is that application providers are not obligated to save data. Based on the terminology in the Internet Draft Bill, there are two kinds of providers: the connection 8 ones and the application ones, being that any provider that does not provide connectivity to the network users is classified as the second type.
The legislative proposal states that application providers will not have any obligation to keep access records, unless the police or administrative authority, Prosecutor (Ministério Publico) or court order requires such.
With the purpose of illustrating an example of a complication that the rule may generate, let’s imagine pedophilia perpetrated by sending electronic messages with pictures attached. If the criminal sent the pictures from an email9 provider that does not save register data, there will not be information about the origin of criminal messages anywhere.
If the crime is investigated, the authority may require this provider to store registry data from that specific e-mail account from the moment they receive an official notice, summoning or court order . Thus, the prior infractions performed with that same e-mail account will have no type of identification. This infers that the offender no longer accesses that account, and he will have committed the “perfect crime”. Thus, it is possible to realize that all the criminal needs to do is create a new email account for each new infraction so that he may remain completely safe from being identified. The same reasoning applies to copyright violations in the network. As described below:
Art. 17. A court order may force, during a specific time, internet application providers to keep access registers for internet applications, as long as they are records related to specific facts during a determined period, and the provision of information will be subject to Section IV of this Chapter.
Art. 18. Subject to the hypothesis contemplated in this law, the option of not saving access registers to internet applications does not imply liability for damages arising from the use of such services by third parties.
Thus, it wasn’t established in the Draft Bill and the standard rules for the application providers´ liability for copyright violations committed by their users, was relegated to the specific legislation. The STJ(Supreme Court) has been presenting decisions in this direction, distancing the Risk Theory by applying the principles that guide this Draft Bill. However, by reading the provisions above, the so-called “perfect crimes” may not have a solution.
Finally, it is worth commenting that the Draft Bill prohibits the implementation of the graduated response system. This system remained in force until recently in France and remains in force, with peculiarities in each location. After numerous infractions committed, offenders may be punished with a temporary interruption of their internet access.
With the principals and rule set out in the Draft Bill, we will certainly continue to face the challenge of defining rules for the technology that has been advancing drastically with daily use by each of one of us. The interpreters of the law – which initially regulate past facts –must pursue the understanding and coding so that the internet may continue fulfilling its most noble democracy-based purpose. May the abuses be analyzed from the perspective of the guiding principles, and thus allow for the continuity of this extraordinary advance.
*Rosely Cruz, attorney, Buscapé Company vice-president Legal Affairs for Latin America, and neolaw. partner.