Imperial period

Brazil's first constitution, the Imperial Constitution of 1824, did not deal with creative works, and instead only mentioned patents:^[2]

Os inventores terão a propriedade das suas descobertas, ou das suas producções. A Lei lhes assegurará um privilegio exclusivo temporario, ou lhes remunerará em resarcimento da perda, que hajam de soffrer pela vulgarisação.

Inventors will have ownership of their discoveries, or their productions. The Law will assure them an exclusive temporary privilege, or compensate them on losses they may suffer through dissemination.^{[lower-alpha 1]}

— Imperial Constitution 1824, Art. 179. XXVI

The first legal document to deal with the protection of creative works in Brazil was the Law of 11 August 1827, which gave jurist course professors exclusive publication rights to their course's compendia for the 10 years following their approval by the government.^[3]

However, the general protection of creative works in Brazil first came from article 261 of the Criminal Code of 1830.^[4] It protected any text ("or stamp") which had been written, composed or translated by Brazilian citizens, for the lifetime of the author, plus 10 years if they had any heirs. If such works were made by corporations, the protection lasted for 10 years after publication.^[5]

Photograph taken on 17 May 1888 depicting a mass celebrating the abolition of slavery in Brazil. As the Brazilian copyright law of the time did not consider artworks – much less photography, which was still in its infancy – the reproduction of such a photo would not be illegal.

While it was a step in the direction of an all-encompassing copyright protection, the Code of 1830 protected only written works, not any other kind of artwork; this and other issues would be criticized by scholars in the decades that followed its enactment.^[6]

For example, the then-barely invented photographs were also not considered for the 1830 text, and would likely not be illegal to reproduce in the following years as the technology developed. However, one must also consider the relative difficulty it would have been, in the mid to late 19th century, to copy or otherwise reproduce (a potentially single physical copy of) a photograph without authorization from the owner.

First Republic

Following the Proclamation of the Republic in 1889, copyright protections were expanded to encompass any type of artistic work – and no longer only literary works – in the Penal Code of 1890. The duration of copyright wasn't changed; it still lasted for the lifetime of the author, plus 10 years if they had any heirs.^[7]

In 1891, copyright would finally become constitutional, in the first constitution of the Brazilian republic. That, in itself, was a landmark in terms of Brazilian copyright protections.^[8] The law had a clear separation of patents and copyright, and delegated the duration of copyright to the Penal Code – as such, it remained as lifetime of the author, plus 10 years if there were heirs.

Aos autores de obras literárias e artísticas é garantido o direito exclusivo de reproduzi-las, pela imprensa ou por qualquer outro processo mecânico. Os herdeiros dos autores gozarão desse direito pelo tempo que a lei determinar.

To the authors of literary and artistic works is guaranteed the exclusive right to reproduce them, by press or any other mechanical process. Their heirs will enjoy that right for as long as the law determines.

— First Republic Constitution 1891, Art. 72 § 26

Because the 1898 law set a time limit for the registration of works to acquire copyrights, any work created before 1897 would be uncopyrightable. This is the case of this portrait illustration of Prudente de Morais, third president of Brazil, by Gustavo Dall'Ara, created in 1896.

On 1 August 1898, Law Nº496 was promulgated, the first to explicitly mention "author's rights".^[9] It protected an author's right to reproduce (or authorize the reproduction of) their work – be it "literary, scientific or artistic" – through "publication, translation, representation or execution of any other kind".^[10] Counting from 1 January of the year of publication, the protection lasted 50 years for exact reproductions (i.e. exact copies), but it would only protect for 10 years the exclusive right to translate or otherwise represent the work in a non-reproductive way.^[11]

For dead authors, owners of a posthumous work benefit from the author's rights, lasting 50 years counting from the date of death of the author.^[12] Author's rights of anonymous or pseudonym works belong to the work's editor, but if the author is found or discovered, they obtain the rights.^[13]

Crucially, this protection wasn't automatic: it was required that works be submitted to the National Library of Brazil until 31 December of the year following the publication. For printed works, photographs and lithographs, the submission required "a copy in perfect conservation status"; for paintings, drawings, sculptures or other, a "perfectly clear" photograph of the work.^[14] A side effect of this time limit is that it would have made works created before 1897 uncopyrightable, as they would need to have been registered before the law was even promulgated.

Limitations

However, copyright is not all-encompassing in Brazil – it has some limitations. The following are not considered copyright infringements:^[20]

• The reproduction of:
  • Laws and technical standards;
  • News or informative articles, in periodicals, as long as the name of the original author (if there is one) and of the original publication are mentioned;
  • Public speeches, in periodicals;
  • Portraits or any other form of image representation, made-to-order, when reproduced by the owner, given that there is no opposition by the person represented in them or by their heirs;
  • Literary, artistic or scientific works, for exclusive use by the visually impaired, as long as the reproduction is noncommercial and uses braille or other appropriated procedure;
• The nonprofit reproduction, in a single exemplar of few excerpts, for private use by the copyist, if made by themself;
• The quotation in books, newspapers, magazines or any other means of communication, of sections of any work, for the purpose of study, criticism or controversy, of a justifiable amount of content, indicating the name of the author and the source of the work;
• The collection of lecture notes in an education institution by who they are directed to, barred their publication, in whole or in part, without authorization by the lecturer;
• The use of literary, artistic or scientific works, audio recordings and radio or television transmissions in commercial establishments, exclusively for demonstration to clients, as long as these establishments commercialize support or equipments that allow for its use;
• Theatrical representation and musical execution, when done at home or for exclusively didactic reasons in education establishments, given it is not-for-profit;
• The use of literary, artistic or scientific works to produce judiciary or administrative evidence;
• The reproduction, in any work, of small sections of existing works, of any nature, or of the full work, when dealing with plastic arts, whenever the reproduction itself is not the main purpose of the new work and that it does not harm the normal exploration of the reproduced work or cause unjustifiable loss to the interests of the original authors.

Paraphrasing and parodying are also allowed, given that they are neither faithful reproductions of the originating work, nor disparaging to it.^[21] Additionally, Brazilian law has a freedom of panorama clause, concerning permanently displayed works in the public space. It allows for their reproduction through paintings, drawings, photographs and "audiovisual procedures".^[22]

Fair dealing

Brazilian copyright law does not refer to its self-imposed limitations as "fair dealing" (or "fair use"), although some of them – such as the right to quote – could be considered as such. That said, the law has a specific clause preventing what is most commonly referred to, usually in online spaces, as "fair use":

Ninguém pode reproduzir obra que não pertença ao domínio público, a pretexto de anotá-la, comentá-la ou melhorá-la, sem permissão do autor. Os comentários ou anotações poderão ser publicados separadamente.

No one may reproduce any work that is not in the public domain, on the pretext of annotating, commentating or improving it, without permission from the author. The commentary or annotations may be published separately.

— Law 9.610 1998, Art. 33