The aim of this article is to examine the landscape of moral rights in Brazil and to highlight a few areas of debate that remain to be addressed in relation to how these rights are implemented in that jurisdiction. In order to do so, this article will first give a brief overview of the nature of moral rights and what they aim to protect. This will be followed by an assessment of the regulation of moral rights in Brazil, with a consideration of both international and domestic legislation. The Brazilian legislation will then be analysed in comparison with the French treatment of moral rights. Following this, Brazilian case law and current anecdotes involving moral rights will be discussed, thereby highlighting some key issues that remain unaddressed in Brazilian law. The aim of this article is to aid the international reader in navigating the realm of moral rights in Brazil whilst highlighting discrepancies in the application of the law.
What are Moral Rights and What do they Aim to Protect?
Moral rights have their origin in France. It is believed that they were enforced by the French courts as early as the nineteenth century, (1) although their codification only came about much later. (2) Their raison d'etre is, in a sense, largely linked to the Romantic notion of the artist as a genius that prevailed in the Western tradition of art during the nineteenth century. The understanding, according to this notion, was that the artist captured something of his personality, of his genius, in each of his creations. It was with the aim of protecting this ethereal quality of the artwork that moral rights were conceived.
Their premise was that this ethereal quality went far beyond the mere physicality of the work--of say, canvas, wood and oil--and, because it reflected the artist himself, this quality meant there was something to be protected in addition to, and separately from, the artist's more ordinary copyright, which embodied his economic interests in the work. As such, a dualist approach surfaced, whereby moral rights and copyright existed entirely independently from one another and would eventually be granted entirely distinct legal protections.
Unlike copyright, moral rights in most civil jurisdictions cannot be transferred, renounced (3) or assigned under any circumstances. They will always remain with the artist him/herself, notwithstanding any contrary indication by the artist as to his/her wishes or personal preferences in this regard, and they will also remain with the artist regardless of who holds the title to the artwork to which they refer. Moreover, unlike copyright, in many jurisdictions, such as Brazil and France, moral rights never fall into the public domain, regardless of the number of years since the artist's death, and, as with copyright, they can also be inherited.
This brief introduction already underlines the striking difference in the treatment generally afforded to moral rights in comparison with their less sublime and more economically-focused counterpart, copyright. In a rough simplification, it could be said that moral rights are concerned with the artist him/herself and his/her personality, whereas copyright is concerned with the artwork itself, its reproduction and economic exploitation. It is this distinction which might be said to justify the massive difference in the protection levels afforded to the two sets of rights.
Nonetheless, it is not true to say that there are absolutely no similarities between moral rights and copyright, given that just as copyright protects only certain types of works, as defined in intellectual property laws, moral rights also have their scope limited to these same defined artworks and are also subject to the same originality requirements that copyright would normally demand from the artist.
MORAL RIGHTS UNDER BRAZILIAN LEGISLATION: THEN AND NOW
Moral rights in Brazil are currently regulated by the Berne Convention and domestic federal legislation, namely the Intellectual Property Law no. 9610 of 1998.
Brazil acceded to the Berne Convention in 1922. The origins of moral rights in Brazil date back to the 1928 Rome Act, when Article 6 bis of the Berne Convention was adopted, and which entered into force in Brazil in 1933. In this regard, Brazil joined the moral rights party relatively early on. Nonetheless, current domestic legislation on moral rights in Brazil has its roots in the more recent general Intellectual Property Law of 1998.
This Law, hereinafter referred to as the 1998 IP Law, is a major landmark in the landscape of moral rights in Brazil. The law not only expressly identifies all the rights it grants the artist under the umbrella concept of 'moral rights' but also treats these rights separately from copyright (Article 22) and regulates how these can be exercised. As such, it establishes their duration, their treatment following the artist's death, as well as the constraints on their renunciation, transfer and assignation.
Article 24 of the 1998 IP Law grants the artist the following moral rights:
(i) the right to claim authorship over the artwork;
(ii) the right to be acknowledged as the author whenever the work is used, meaning whenever it is displayed, reproduced, etc.;
(iii) the right to determine how the work is communicated to the public, especially with regards to how it is first made accessible or available to the public;
(iv) the right to ensure the integrity of the work by opposing any modifications to the work, so long as these would be prejudicial either to the work itself or the author (in his reputation or honour);
(v) the right to modify the work, even after its completion--although the artist could be found liable for damage caused to third parties in doing so;
(vi) the right to remove the work from circulation and/or constrain public access to the work--although the artist could also be found liable for damage caused to third parties in doing so;
(vii) the right to access a unique work in the artist's oeuvre, even after this work has been sold or its property title has passed on to a third party, for the purposes of photographing and/or including a representation of the work in the artist's personal records/archives, albeit the artist is in any case liable to the current owner of the piece for any resulting damage in doing so;
and Article 26 provides for an eighth right:
(viii) the right to disavow the work as one's own--although the law specifically mentions this possibility only with regards to architectural works where unauthorised renovations/modifications have been undertaken.
The list above merits further comments on some aspects. For example, with regards to right (ii) the law further states in Article 52 that where the artist's name is omitted when the work is displayed, this omission does not allow the assumption that the work is by an anonymous or unknown artist--which would usually mean that the work is in the public domain, in accordance with Article 45 [section]11--or that the artist has renounced or assigned his/her rights. Here, it is not specified whether these would be moral rights or copyright, but, given that the law allows for the assignation of copyright only, one can safely interpret these rights as referring exclusively to copyright.
As regards right (iv), it is important to notice how the law almost creates two distinct rights--to ensure the integrity of the work and to oppose modifications. The specific wording of this provision is important as it generates confusion when it comes to its enforcement. Sometimes this provision is interpreted to mean an independent right to ensure the integrity of the work as a value in its own right, which is inconsistent with the remainder of the text in this provision, since it conditions the illicitness of modifications to the meeting of certain requirements. This problematic relationship will be further discussed in the case law analysis in this article. Additionally, it is interesting to notice how the law refers to a detriment to either the reputation or the honour of the artist. It is hard to envisage how one could be impacted whilst the other would remain unharmed, but perhaps this wording serves as an example of an overly zealous or verbose legislator.
Moreover, rights (v) and (vi) carry an important potential limitation to their exercise by the artist, as they emphasise the possibility that, in carrying out actions that would exercise these rights, the artist may be found liable for damage caused to third parties, as will be discussed next. Arguably, the question remains as to whether the artist might be less keen to exercise his/her rights for fear of later being found liable?
As regards (v), the right to later modify a work that had already been completed, one hypothetical example to be considered is the recent episode involving the self-shredding Banksy. This piece, Girl with a Balloon, sold through Sotheby's London on 5th October 2018 (lot 67), for...