Brazil's Approach on Anti-Circumvention: Penalties For Hindering Fair Dealing

[p2p rules]

Brazil recently unveiled its much anticipated copyright reform proposal and it provides a statutory example of applying this principle.  Article 107 includes an interesting balance to legal protection for digital locks.

Not only does the proposal permit circumvention for fair dealing and public domain purposes, but it establishes equivalent penalties for hindering or preventing the users from exercising their fair dealing rights.  In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago - over-protection is just as harmful as under-protection.

§1º. The same sanction applies, without prejudice to other sanctions set forth by law, to whom, through whatever means:

a)     hinders or prevents the uses allowed by arts. 46, 47 and 48 of this Act [which addresses limitations to copyright including fair dealing]; or

b)     hinders or prevents the free use of works, broadcast transmissions and phonograms which have fallen into the public domain.

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