Attilio José Ventura Gorini
e
Rodrigo Borges Carneiro
Advogados
Dannemann, Siemsen, Bigler & Ipanema Moreira
Dannemann Siemsen Advogados

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Introduction

Maybe one of the shadiest areas that the scholars and practitioners in the copyright area find on an almost daily basis is the assignment of such rights. In the United States, the transfer of ownership may occur in whole or in part and any of the exclusive rights granted by section 106 of the 1976 Copyright Act may be included in such grant .

The considerably straightforward provisions related to transfer of copyright in the United States gives a fairly wrong impression of the complexity involved in such transfers and the level of expertise the law practitioner must have in order to draft a document that will shield his/her client from future claims . That expertise, of course, increases considerably when the practitioner deals with agreements involving foreign parties.

However, there is still a third level of complexity that must not be forgotten: agreements involving a company or individual with domicile in a civil law country . The distinct rules of protection to copyright and related rights in civil law countries demands knowledge, by a common law country practitioner, of radically different laws and specially of limitations which may make the otherwise smooth and standard procedure of assignment of rights become an actual nightmare.

This article will try to call the attention of its readers to the various issues involving assignment of rights in civil law countries. However, the method chosen for this article is to focus in one of the most problematic civil law countries in the world when assignment of copyrights and related rights are concerned: the Federative Republic of Brazil. There is no intention to write a treatise exhausting the several different intricacies of several different civil law countries. The focus on one country is aimed at allowing more space for in-depth analysis that can also be used when dealing with other civil law countries.

Also, the objective was to write something that could actually be used by several common law country practitioners as a guide to the problems that may be faced in civil law countries, especially Brazil. Therefore, a "hands-on" approach to the article was chosen, with several tips and walkthroughs based on actual negotiations and court actions in Brazil.

By utilizing Brazil as the paradigm, this article will show, in its section two, how is the mechanics of protection of copyrights and related rights in civil law countries. The mechanics of the Copyright Act of the United States will be mentioned when appropriate in order to either contrast the systems or show their similarities. This section will also provide an overview of the division of the copyright into economic and moral rights and an introductory view of the rights related to copyright or, in other words, the neighboring rights of artists and performers.

Section three will be dedicated to the pitfalls of the civil law system in relation to the assignment of the economic rights of the authors, while section four will delve into the delicate realm of the moral rights and the extreme protection afforded to such rights.

Also of importance is to deal with the peculiar situation of the neighboring rights since they also directly affect the entertainment industry as a whole. Thus, in section five, the article will discuss, with actual examples, what is happening in Brazil - or, better yet, what is not happening - with the assignment of the neighboring rights.

The conclusion will show that, with all the hindrances and limitations to the assignment and even the mere license of such rights, with over paternalistic laws, Brazil is a country where the assignment of rights must be viewed carefully. Once the problems are actually understood, the negotiations, however, become much simpler and alternatives can more easily be found. There are different cultures behind the copyright protection in civil law countries and the respect to such cultures will allow deals to be closed more effectively and, consequently, more economically.

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