The 'Marco Civil Da Internet' And Copyright Protection

The recently enacted Law No. 12.965 of April 23, 2014 - commonly referred to as the "Marco Civil da Internet" - has received significant publicity for both its vanguard content and the concerns it raises to certain Internet market players.

The Marco Civil da Internet is not the "Internet Constitution" as it has been coined by some. All rules and principles of Brazilian Law apply to the Internet and proof of this fact is that several provisions of this new law simply repeat constitutional tenets, such as rights to freedom of expression, free enterprise and competition.

Also, the new law's objective is not to "control" the Internet but to establish/adapt norms for this still newfound virtual world, such as: (i) the protection of privacy by prohibiting access to e-mail content by service providers; (ii) free access to the Web, through the introduction of the concept of neutrality; and (iii) requirement that service provider store user information for a given time period, to enable cooperation with law authorities if necessary.

Although the new law is quite comprehensive it does not detail many applicable rules, which are expected to be addressed through secondary legislation to be issued soon by the Federal Government.

Copyright protection, is also a constitutional principle, applicable to the Web. A topic of major importance - and insufficiently addressed in the Marco Civil da Internet - has to do with copyright violation on the Web. The protection of copyright-protected content by controlling its unauthorized use has been proved challenging due to the unmatched ability of the Web to disseminate such content.

After an initial phase of conflict and uncertainty, Internet market players reached common ground: once notified by rights holders, Internet providers removed the illegal content from the Web. (Will they continue to do so?). The Brazilian courts on the other hand, while rendering erratic decisions at the time when these issues were still novel, sought early on to validate market rules, curbing unauthorized use in instances such as when the parties would not reach an agreement.

Article 19, Paragraph 2 of the new law, provides that enforcement of restrictive rules concerning provider liability for Internet copyright violation will depend on specific regulation still to be issued. Discussions on scope and timing of this rule...