It has been with grave concern that rightholders in Brazil and all over the world have watched the discussions on two MPs that would have huge impact for the creative and artistic community, namely for copyright and collective management. An MP is a Provisional Measure (Medida Provisória) and is a legal instrument, adopted by the President of the Republic, in cases of relevance and urgency. It has immediate effects but depends on approval by the National Congress for definitive transformation into law. Its term of validity is sixty days, extendable once for an equal period. So basically, an MP can last for as long as 180 days (half an year…).
The first one was MP 907/19 ,which among its several dispositions aimed to exempt hotel rooms and cruise ships from the payment of copyright royalties. The government’s initiative to exempt hotels and cruises from payments to rightholders could have an impact of cutting R $110 million (approximately €18 million) of due royalties.
The initial law project specifically stated that:
“The collection and distribution of copyrights will not apply to the execution of literary, artistic or scientific works inside the housing units of the means of accommodation and cabins of means of transport for sea and river passengers.”
This measure could have had significant impact on an international level, namely as to the relations between EU and Brazilian rightholders. Why? CMOs with reciprocal agreements transfer their collections from different sources and usages to one another, based on the identified works and the rightsholders and shares associated with them. In the EU, it results from Article 3 (1) of the Infosoc Directive that:
“Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”
“This measure could have had significant impact on an international level, namely as to the relations between EU and Brazilian rightholders.”
Plus, the European Court of Justice has specifically decided the question of communication to the public of copyright works in hotel rooms in its Rafael Hotels ruling that:
“(…) the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3 (1) of that directive.”
Meaning that nowadays EU rightholders receive their share from Brazil’s hotels and cruises collections and the opposite is also true. If such a measure was approved and consequently EU rightsholders stopped receiving royalties for such usages in Brazil, would this immediately mean that EU rightsholders would also stop (by their own will) to collect and send the Brazilian rightholders’ share to Brazil? No, and in my opinion, even if the initial proposal of MP 907/2019 was approved, having EU CMOs proceeding in such a way would be unacceptable as not one rightsholder or their representative in Brazil should ever be sanctioned by measures taken by their government.
Yet, could it happen based on changes on the reciprocal agreements or national legislation? It is possible if we compare it with what happens with neighbouring rights public performance collection for traditional Radio and TV in the US. Thankfully, after brilliant interventions by Brazilian CMO ABRAMUS President Mr. Roberto Corrêa de Mello and ECAD’s Collections Manager Marcello Nascimento, and a wide and strong campaign ran by the Brazilian CMOs and cultural and creative community, the final version of the MP 907/19 excluded that exemption.
However, what could be seen as an achievement was tryingly undermined again by political power, by going even further in a new proposal of Provisional Measure, the MP 948/2020.
This new MP also proposed a novel approach to copyright collection that would challenge the (quasi-global) landscape and heavily impact rightholders revenues, with two specific measures. The first measure of the MP stated that it would no longer be the promoter of a live music event that was responsible for obtaining the due licensing from rightholders, instead shifting the responsibility to the artist as the one responsible for acquiring the copyright licenses. This is hardly seen anywhere else in the world and would have created serious consequences, like having artists negotiating and bargaining with rightholders whose works they would be performing, something that could have caused conflicts within the creative community and heavily impact music creation, production and commercialization. It could also oblige artists to acquire and negotiate the licenses with the CMOs that (in Brazil) also represent those same artists’ neighbouring rights…. It would have been chaotic, it seems….
“This is problematic in the sense that it would be the political power itself defining what creators and rightholders could “charge” for the usage of their works, and also in the sense that the amount of payable royalties would be intrinsically linked with what the artist’s cache would be.”
The second proposed measure of the contested MP was an attempted pivot to the exclusive right of authors to set the conditions (and pricing) for the use of their works. How? Well, the MP stated that the amount payable for live shows would be 5% of the artist’s cache for the show. This is problematic in the sense that it would be the political power itself defining what creators and rightholders could “charge” for the usage of their works, and also in the sense that the amount of payable royalties would be intrinsically linked with what the artist’s cache would be, making copyright dependable on what an artist would agree as its own cache. Now if you think about the first measure (the artist would have to acquire the copyright license) and link it with this second one (copyright would be 5% of the artist’s cache), you can clearly imagine that it would be like opening a Pandora’s box.
Now it was time for world renowned artists to come out and show their indignation towards such measures. We saw the likes of Anitta, Alceu Valença, Danilo Caymmi, and Jorge Vercillo showing their strong opposition to the proposed law, and Anitta (as well described by Rolling Stone Brasil) engaged in an Instagram live debate with the MP responsible for such proposed measures. This led to a public statement by the MP saying that he would withdraw the measures, and therefore MP 948/2020 did not go ahead.
This is good news for the Brazilian music market, which has always been and still is a pole for the creation, composition and production of good music, and a trend maker in the global music market. According to the IFPI’s latest Global Music Report, Brazil is the 10th largest recorded music market globally, with Latin America proving to be the fastest-growing region for the fifth consecutive year in 2019. CISAC’s Global Collections Report 2019 also shows Brazil in the top 10 countries for music collections with €194 million (a 2.3% share of world collections).
Furthermore, it is interesting to see that Latin American music consumers are more passionate and engaged than any other music consumers in the world. Also, due to the musicality of the country and its people, it has been seen and used by major DSPs as an interesting test market for pilot projects which are of extremely importance, such as the Spotify female music studio in São Paulo. DSPs recognize that entering into the Brazilian market is one of the best decisions business-wise that they can make.
Brazil is the land of Samba, Samba-Rock, Bossanova, Forró, Sertanejo, and iconic musicians as Adoniran Barbosa, Jorge Ben Jor, Chico Buarque, João Gilberto, Vinicius de Moraes, Tom Jobim Caetano Veloso, Tim Maia, Luis Gonzaga, Ellis Regina, Gilberto Gil, Marisa Monte, and so many others… And who in the world is not familiarised with the rhythms and the music of Carnaval? And again, Brazil paved the way for safeguarding basic copyright principles, showing the world that it’s important for international rightsholders and organizations to pay attention to what is happening in individual territories. Had they not succeeded, a butterfly effect would have been felt within the creative community. But Brazil is Brazil, its joy and its music!
As said by Chico Buarque:
Morava tão vizinha
Que, de tolo
Até pensei que fosse minha”