YouTube, Blogs, ECAD, Streaming and Public Performance in Brazil. What a mess!

by Andrew

Last week, a debate has grown after blog Calligraffiti complained about invoices for public performance fees for embedding YouTube videos sent by ECAD, the Central Office for Collection and Distribution of Public Performance Rights in Brazil.

The debate has motivated a dedicated post at Forbes online where the charges were considered a scandal. The column, written by Forbes’ contributor Ricardo Gerome, considered that “astonishingly, according to absurd copyright laws in Brazil, the Central Bureau of Collection and Distribution is surprisingly correct in doing so”.

Later that week, in an official statement, YouTube Brazil showed support for the Blogs explaining that there is an agreement in place between YouTube and ECAD which does not allow ECAD to charge third parties for the embedded videos originated from YouTube.

The statement from YouTube Brazil goes further to explain that “ECAD can legitimately charge payment fees for entities which promote public performance of music on the Internet. However, the understanding of ECAD as to what constitutes the concept of public performance on the Internet does raise serious concerns. To consider any making available or reference to online content as public performance is an erroneous interpretation of the Brazilian Copyright law.”

All this movement has caught the attention of ECAD which then issued a public statement on its website explaining that ECAD, acting on the interest of the protection of the rights of thousands of owners of copyrights represented by their associations, has been authorizing sites to public perform music.

According to ECAD, only in 2011 2.6 million of realis were distributed to copyright owners due to public performance of music on 1,170 sites and portals which have been regularly paying the fees.

Also, ECAD has explained that it has executed a letter of intention with Google and that this is the document which has been regulating the relation of these entities. According to ECAD, this letter does not prohibit ECAD from charging for embedded videos as long as it previously notify Google. However, according to ECAD, charging for embedded videos was never the focus or the intention of ECAD which has numerous registered users for simulcasting and webcasting but which are only legal entities and not natural persons and that the case of the blog Calligraffiti was in reality an operational mistake. Further, ECAD informs that it has decided to suspend the charging of webcasting as of February 29, 2012.

So, apparently, ECAD has the right to charge performance fees for webcasting and the embedded videos under the Brazilian Copyright law but had promised Google that it would not do so and the incident was only an operational mistake already and the charge was canceled.

No harm, no foul and the only one to blame is our obtuse copyright law. Not so fast, dear reader.

In our view , contrary to what was said by Forbes online columnist, Google and ECAD, the legitimacy of ECAD under our Copyright Law to charge public performance fees for webcasting is not that straightforward. It is easy to blame the law but the law actually helps here.

In fact, we do have serious doubts about this legitimacy as our Copyright Law already contemplates as a separate right from public performance or communication to the public the right of distribution of works by any means which allows the user to select the work to receive it in a time and place previously determined by who makes the demand and in cases were the access to works is made by any means which encompasses payment.
Also, the definition of reproduction already encompasses any tangible or intangible copy of a work, including any permanent or transitory storage by electronic means or other means.

Further, the use made on webcasting have intrinsic differences in relation to the traditional means of public performance which, in our view, warrant a different treatment which is more akin to a private distribution of a work online and cannot be considered to be public performance. In reality, they represent a point-to-point transmission which is triggered by the request of the user and is not the same as a traditional television or radio broadcasting.

It is important to note that ECAD only has legitimacy to collect fees for public performance and that if the use is not considered a public performance the owners of the copyright and related rights should be contacted directly to obtain the necessary licenses.

Further, for those of you aware of international treaties which encompassed definitions of the making available rights, it is important to note that Brazil has not adopted these treaties managed by WIPO.

What is also important to note is that, apparently, there is already a decision from the State Court of Appeals of Rio de Janeiro contrary to ECAD and its goals of charging for online streaming in a case involving simulcasting and webcasting, but the decision has not yet been published so this blogger cannot confirm its contents or reasoning.

However it is fair to suspect that the true reason behind the decision of ECAD to suspend the charges of webcasting on February 29 was partially the necessity to reevaluate the legality of this collection under the current law. But, of course, this is only speculation.

As I warned you from the beginning: what a mess!

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