On November 27, 2019, the Brazilian Federal Official Gazette published the Provisional Measure No. 907 [1], that is popularly known as “The Hour of Tourism” (“A Hora do Turismo”) for seeking the growth of national tourism through some amendments to the Brazilian legal system, such as the concession of tax benefits, the institution of the Brazilian Agency for International Tourism Promotion (“Agência Brasileira de Promoção Internacional do Turismo”) and the amendment of Article 68 of Law No. 9,610 of February 19, 1998 [2].

Such article 68 of the Brazilian Copyright Law (LDA) regulates that the communication to the public of theatrical works, musical or literary-musical compositions and phonograms in places frequented by the public depends on a prior and express authorization of the respective copyright holder.

This precept is based on the patrimonial aspect of copyright by means of which its holder has the prerogative to authorize or prohibit the economic exploitation of his works in accordance with article 29 of the LDA (notably regarding item VIII).

It is worth mentioning that copyright management can be performed on an individual or collective basis. In this sense, the supervision of the use of the copyright works, their payment and control over the extent of such works can be exercised on an individually or collectively basis, since LDA does not require that any copyright holder shall be partner of a rights management entity.

Nonetheless, the collective management is the one usually chosen by the copyright holders in a way that they authorize the respective entity to collect and distribute the fees obtained through public communication.

Pursuant to the public performance of music, scope of this article, the collection and distribution of the corresponding copyright fees are performed by the Central Office of Collection and Distribution (“ECAD – Escritório Central de Arrecadação e Distribuição”), under the terms of its statute [3] and the LDA.

ECAD is a private non-profit civil association run by 7 associations (whose acronyms are Abramus, Amar, Assim, Sbacem, Sicam, Socinpro and UBC) of copyright and related rights holders, and centralizes at a national level the collection and distribution of public performance of musical works, literary-musical compositions and phonograms, including through broadcasting and transmission by any modality, and the exhibition of audiovisual works.

Its operation is performed in practice as follows: the copyright holders may be an affiliate to any of the 7 associations, according to their statutes and nature of the protected rights, in a way that grants to the respective association the representation and management powers of their rights. In turn, such association is an associate of ECAD and constitutes it as an agent of the copyright holders to defend them, collect and distribute the corresponding rights. In other words, ECAD assumes the position of legal representative of the associations and, consequently, of the copyright holders affiliated to them, and may act on an extra and judicially basis in their own name as a procedural substitute in the defence and collection of such rights.

Being said that, the question that remains is: what is the relation established by and between the musical communication to the public and the Provisional Measure No. 907?

The Provisional Measure No. 907 amends the paragraph 3 of article 68 of the LDA and includes its paragraph 9, which means that such Provisional Measure extinguishes the transport of sea passengers from the concept of collective frequency and expressly provides that there will not be any collection and distribution of copyrights communicated to the public in hotel rooms and cruise cabins.

Follows the free translation of such paragraphs 3 and 9 of article 68 of the Brazilian Copyright Law:

Art. 68. Theatrical works, literary-musical compositions and phonograms may not be used in public presentations or performances without the express prior consent of its author or holder.
(…)
Paragraph 3 – Collective frequency venues where literary, artistic or scientific works are represented, performed or transmitted, such as theatres, cinemas, ballrooms or concerts, night clubs, bars, clubs or associations of any kind, shops, commercial and industrial establishments, stadiums, circuses, fairs, restaurants, motels, clinics, hospitals, public entities under direct or indirect of foundational control, government-owned companies, land and air passenger transport, public and common spaces for accommodation and sea and river passenger transport. (Wording given by Provisional Measure N. 907 of 2019)
(…)
Paragraph 9. The collection and distribution of copyrights shall not affect the execution of literary, artistic or scientific works within the hotel rooms of lodging facilities and the cabins of maritime and fluvial passenger transport facilities. (Included by Provisional Measure N. 907 of 2019)

In other words, the Provisional Measure N. 907 extinguishes the collection of copyrights in hotel rooms and cruise cabins, which will affect the field of supervision of ECAD and its associations. However, by interpretative analysis of the amendments introduced by such Provisional Measure, the collection of copyright of common areas of hotels and maritime and fluvial ships is not changed, remaining the obligation to pay when the communication to the public is performed.

According to the Brazilian government, this exemption from payment seeks to avoid double taxation by ECAD as it collects the respective rates from both private and common areas.

Finally, the amendments are controversial because they involve discussions about the double taxation and the legal instrument adopted to prevent the mentioned collection. In particular, pursuant to Article 62 of the Brazilian Federal Constitution, the provisional measure is an instrument with the force of law that should be enacted by the President of the Republic only in cases of relevance and urgency. Although it has immediate effects, its transformation into law depends on the approval of the National Congress.

The doubt that remains is that if the amendment introduced by Provisional Measure N. 907 to the LDA is relevant and urgent enough in order to justify such enactment.

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[1] Provisional Measure N. 907 of November 26, 2019 published in the Brazilian Federal Official Gazette on November 27, 2019: <http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2019/Mpv/mpv907.htm>

[2] Law N. 9.610 of May 14, 1998, as amended: <http://www.planalto.gov.br/ccivil_03/leis/l9610.htm>

[3] ECAD’s statute: <https://www3.ecad.org.br/o-ecad/Documents/estatuto%20(2).pdf>

Source of the image of a musical score: Image by Gerd Altmann from Pixabay