The Brazilian Senate approved a bill that seeks to reform the collective management system of Copyright regarding music. After continuous protests by the civil society, the Bill that establishes the need for greater transparency of the collective management national institution is now awaiting the sanction of the President.

By Pedro Belchior, Mariana Valente and Eduardo Magrani, Centro de Tecnología y Sociedad.

Absolutely controversial topic in the area of Copyrights, the collective management has generated discontent for decades on the behalf of authors, artists and users of musical works. In Brazil, the most pleased element is the Central Office of Collection and Distribution (ECAD, in Portuguese), the institution responsible for the collection and distribution of rights related to the public performance of music and also the holder of the legal monopoly to perform the activity.

Even though, on the last weeks Brazil took a significant step towards the reform of collective management. Unanimously approved by the Commission of Constitution, Justice and Citizenship (CCJ) of the Senate, the report of the replacement of Senate Bill number 129/2012 was followed by the approval of a request for urgency, which referred the Senate Bill (PLS) 129 directly to the plenary session of the Senate, which approved it by the end of the same day. The PLS was sent to the House of Representatives and there they took the same procedures. After being approved by the House with an single change regarding an exemption for churches, it now depends only on the sanction of the President.

But the story and the mobilization behind the PLS 129 are old. In the early 90s, when Brazil was chaired by Fernando Collor de Mello, the National Copyright Council (CNDA, in Portuguese), the agency then responsible for overseeing the ECAD, was deactivated. A few decades of legal monopoly without public oversight were sufficient to create a distorted and obscure system.

Given the context created by the reckless management of ECAD, different Parliamentary Committees of Inquiry (CPI, in Portuguese) were introduced at national and regional scopes – one in the Senate (1995/96), and three in the Legislative Assemblies of Mato Grosso do Sul (2005), São Paulo (2009) and Rio de Janeiro (2011). On these investigations, crimes such as perjury, tax evasion, misappropriation, embezzlement, conspiracy, restraint of trade and abuse of economic power were appointed, but this did not lead to major consequences.

In 2011 a CPI was established in the Senate to reinvestigate the ECAD. Chaired by Senator Randolfe Rodrigues (PSOL/AP) and reported by Senator Lindbergh Farias (PT/RJ), the CPI rose diverse irregularities and crimes, among which the arbitrary expulsion of associations of ECAD’s board, the unjustified replacement of the auditing service under contract, the payment of rewards to the employees for profit sharing, the distribution among ECAD’s executives of values originally related to attorney’s fees of the winning party, misappropriation of undistributed credits and cartel formation, among others.

The report, by showing irregularities and crimes, forced Brazilian artists and music users to take positions on the matter. As a result, the Senate designed the PLS 129/2012, in order to establish conditions to the exercise of powers conferred to ECAD by national legislation.

Months after its submission to the Senate, circumstantial changes brought the PLS 129 back on the agenda: the modification in the Ministry of Culture, with the new minister Marta Suplicy and the consequent return of the former Director of Intellectual Property, Marcos Souza, allied with the new leadership to culture in the House of Representatives. Thus, articulated by GAP, a group formed by artists and other agents of the national music scene, the PLS 129 was referred to the Senate’s Commission of Constitution, Justice and Citizenship (CCJ), and renovated by its rapporteur, Senator Humberto Costa (PT- CE), resuming the process that led to the approval of the PLS in Congress.

The final step to the project’s approval was the articulation of the “Procure Saber” initiative, captained by other national artists of great renown. As a result, the PLS 129 was approved with urgency by on both houses of the Congress, which ended with the approval of the bill in the plenary session of the Senate.

The renewed version of the PLS 129 kept some and altered other provisions of the previous project. The five elected fronts for the basis of the new version remained the same: Transparency, Efficiency, Modernization, Regulation and Inspection. Changing the previous version, there is no provision of an autonomous law for the collective administration, but of modifications in the current Copyright Law, in order to prevent dispersion of legislative efforts. Another prediction of the replacement is to empower the Ministry of Culture to qualify and to supervise the associations related to ECAD. The previous version, due to political circumstances, gave the Ministry of Justice this task.

The new PLS 129 abandons the initial idea of dividing the activities of associations by categories of rights, and predicts that associations thereafter have to prove their effective and regular management, foreseeing procedures that respect the right to contradiction and full defense in the case of penalties for poor management. ECAD itself becomes a target of clearer duties and obligations in order to ensure the transparency and the efficiency demanded by artists and users of musical works. For example, the new ECAD shall manage a single register of works, an old plea of members of the music segment, and it will be allowed to artists and users the constant and permanent monitoring of the data related to public execution of their works.

Other relevant issues concern: the fee related to the associations’ administration, so that the rights holder receives at least 85% of the amounts collected; the limitation to the terms of the associations’ main officers; and the equal right to vote, preventing power asymmetries among the associations.

Therefore, as the PLS 129 is approved on the Congress, the next step is the presidential sanction. The pressure at this moment focuses on that. In parallel, it is expected that the President of the Republic considers the movement of artists and civil society and sanctions the law, but also takes the necessary measures for the (re)creation of an entity engaged in the supervision of the new ECAD’s performance.

Thus, the approval of the PLS 129 on the Congress represents a major step forward, but it is essential to mobilize and monitor the process and the presidential approval of the project, with extreme attention to any veto and changes that may happen away from the eyes of those directly interested in reform.

Eduardo Magrani, Mariana Valente and Pedro Belchior, researchers at Centro de Tecnología y Sociedad (CTS)
E-mail: eduardomagrani (at) gmail.com; pedrobelchiorcosta (at) gmail.com