Brazil's copyright law forbids using DRM to block fair use

A UN treaty called the WIPO Copyright Treaty requires countries to pass laws protecting "software locks" (also called DRM or TPM). Countries around the world have adopted the treaty in different ways: in the US, the Digital Millennium Copyright Act prohibits all circumvention of software locks, even when they don't protect copyright (for example, it would be illegal to for me to break the DRM on a Kindle to access my own novels, were they sold with Kindle DRM).

Brazil has just created the best-ever implementation of WCT. In Brazil's version of the law, you can break DRM without breaking the law, provided you're not also committing a copyright violation. And what's more, any rightsholder who adds a DRM that restricts things that are allowed by Brazilian copyright laws ("fair dealing" or "fair use") faces a fine.

It's a fine and balanced approach to copyright law: your software locks have the power of law where they act to uphold the law. When they take away rights the law gives, they are themselves illegal.

§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.

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


  1. at least one country’s government isn’t under the control of big media!

    when a “democratic” government makes deals behind closed doors for the benefit of a corporations at the loss to their people whom they serve, its called fascism.

    1. That was my thought as well – if Brazil’s fair use laws are at all similar to the U.S.’s there is no situation I can think of where a digital lock would *not* prevent fair use, and therefore be illegal. I mean, even with a 1-day limited digital rented movie it would be fair use for an educator to take a 5 second clip to use in the class room forever.

      1. I can think of some instances where fair use and DRM are not incompatible. Software would be a big one. For example the Steam network allows for backup but is at the same time undeniably DRMed.

  2. Seems like there isn’t a day that goes by when I don’t hear something awesome about Brazil.

    Maybe I should start brushing up on my Portuguese.

  3. If I understand Cory’s reading of the Brazilian law correctly, it implies that rights holders who use DRM must provide the key so that users can exercise their fair dealing rights. As the bad guys (those who violate copyright laws outside of fair dealing) have always had (and probably will always have) the DRM key, it would mean that everybody would have the key and thus DRM is totally unnecessary. A (c) on the material would suffice to protect it under the law.

    (I am all for this, by the way).

  4. Brasil has been showing itself to be a bucket full of awesome lately. It’s things like this that remind me why I moved here. :)

    I wonder how the new law will be used on cracking down on piracy, though. I skimmed through the original doc, but didn’t see many changes on the parts concerning the mass producers and vendors of pirated material. Piracy is beyond rampant here.

    As for media control, Brasil is locked down tight to it’s few major media outlets. Even though they stifle competition and stay within the generally accepted political/social views, they’re not as prickish about it as the media outlets in the States are.

  5. Brazil gets copyright better, and Dubai gets privacy rights better than we do. What’s the world coming to?

  6. I think this post is a bit misleading since the claim that ‘brazil has just created the best ever implementation’ is simply not true.

    if you look at Michael Geist’s original post you will see that, ‘Brazil recently unveiled its much anticipated copyright reform proposal and it provides a statutory example of applying this principle.’

    a copyright reform proposal is something else than an actual implementation (which would require the proposal to be adopted). let’s hope that this will happen soon…

  7. time for the economic hitmen and their jackal companions to descend on brazil in force.

  8. While very heartening, Brazil has such a high crime-rate, it’s not as if these laws have any real meaning.
    seriously, over 5 times higher murder rate than the already quite trigger happy states.

  9. Consumers want DRM on their digital media, and sales numbers will support me on this. Take compact discs. They have no DRM. iTunes does and outsells the older medium. If consumers didn’t want DRM they would buy the compact discs and create MP3s themselves, but they don’t because DRM makes for a much easier and better experience for the end user.

    1. Further: if consumers truly didn’t want DRM on their software, they would buy DRM-free products like cereal instead. Since software continues to be sold, the only conclusion is that they prefer DRM.

      1. maybe the majority does not even know what DRM is. maybe they only get stupid error messages when they try to use their purchased product, think it’s their own fault and call the family expert. that’s where people like me come in. i install a pirated copy of everything (taking care to uncheck every automatic update and the such) and call it a day.

        genuine copies of software are just a proof of purchase really. garbage compared to the pirated\cracked version

      2. Look at Netflix and Hulu for internet video and DVD and Bluray for physical video formats. These products contain DRM and are the dominant video formats for home use. If consumers didn’t like the security that Digital Rights Management provides, they would choose other video formats.

        1. johnwraps, that is the most ridiculous argument i’ve ever heard. you are either a corporate shill or blatantly ignorant.

          zio_donnie was correct, the mass majority of people have no idea what DRM is… ask around. also the majority of people choose what is easy as opposed to what is right. look at diets, political choices (not Dem vs. Rep, that is not a choice), lifestyles, etc.

          luckily things are moving towards a real freedom of media which is why the industries are fighting more. the last acts of a desperate entity.

          1. I’m going with your first guess – that johnwraps is a shill. He’s only ever made three comments on BB – his three blatantly silly nonsensical comments on this thread.

    2. First of all, johnwraps, if users wanted DRM on their music, you’d be hard-pressed to explain the sudden rise of Amazon MP3 as opposed to ITunes. After the failure of several DRM’d music services, it should be apparent that the main reason was a DRM FREE service.

      Also, Apple seemed to consider it enough of a threat to remove DRM.

      What “security” does DRM offer users? The security of not being able to back up their own music? I made the mistake of buying a single DRM’d album and I still can’t get access to the music that *I* bought.

      I’ll second the accusation that you’re likely a corporate shill. You can collect your paycheck all that you want, but no amount of insisting that we want your broken goods will make it true.

    3. Wtf? That is totally nonsense. Consumers want simple and easy things. iTunes is easier than a CD. DRM must be transparent otherwise will keep consumers away.

  10. The Brazilians are nobody’s fools. They know what American-Style copyright *approach* is all about: protecting american corporate copyright holders. It’s not even their corporations so they don’t care, and you’ll see they treat patents on medicines the same way.

    So the rich can piss and moan their right-wing politics and how the sky will fall and research will come to a grinding halt if drug patents are ignored, the impoverished Brazilians don’t have the luxury of caring about that. Pirate and live, or outlaw and die.

    So without many corporate copyright interests of their own, and not currently saddled with a lap-dog government (Like Canada), it’s no surprise this would be their approach. They simply have nothing to gain by bending over backwards for the copyright lobby.

    1. TNGMug, I beg to differ from your comment on how brazilian legislators treat patents on medicine. Or at least add a comment on a small piece of your comment ;)

      Actually, the patents were only broke in one case in Brazil, AIDS medicine. PERIOD.

      If we get the facts; it happened after talks between Brazil and the US company broke down.
      Brazil decided to buy a Generic/SIMILAR product from a different Lab because the US pharmaceutical denied Brazil the same discount it had allowed a different country.

      I’d suggest checking BBC News post on this matter:

      Cheers brothers!

      • #16 • 3:23 PM Saturday, Jul 10, 2010 • Reply The Brazilians are nobody’s fools. They know what American-Style copyright *approach* is all about: protecting american corporate copyright holders. It’s not even their corporations so they don’t care, and you’ll see they treat patents on medicines the same way.

  11. Johnwraps,

    That’s some serious, and silly, conjecture to suppose that popular formats that contain DRM are popular *because* they contain DRM. That’s like saying that McDonalds hamburgers are popular because they’re bad for your heart.

    Netflix offers a whole lot more then just DRM.

    1. DRM is the reason the formats are popular, at least indirectly; without DRM, the content creators would never have released any material.

      1. Eeeexcept the content creators often release material on Amazon mp3 and other places similar to iTunes that don’t have DRM.

        There are many reasons iTunes is popular, but it’s not necessarily DRM.


      2. Funny, that never stopped content producers from releasing cassettes, in spite of the corporate sky-is-falling tears & vomit about how cassettes will destroy music. It didn’t stop them from producing CD’s in the era of cheap CD burners, either. And when Sony or someone finally added DRM rootkits to audio discs, I (along with many, many others) stopped buying them until someone found a way to defeat the rootkit. C’mon, even corporate shills have better info than this… worst troll ever.

  12. Yet another reason why Brasil is on the top of my list of favorite places.

    @turn-self-off#8, Indeed. My fears exactly. I just hope that this time around Brasil can fight them off long enough to become their own type of super-power.

    @Dardas#10, It will take time for Brasil to recover from the decades of dictatorship and backward policies foisted upon them by the neighborhood bully, uh I mean the US/IMF.

    So basically, it’s a hard place that Brasil is in now and probably will be in for a while but I think that they can pull this off. And I wish them all the best in that fight. Eu sou com você meus irmãos.

  13. I don’t want DRM. It’s not like I shop around for DRMed products, in the same way I’m looking for a cheap car radio that’ll play off my iPod. As a consumer, I might accept DRM, if it’s forced on me and I can’t be bothered to look for alternatives or there are none available. But I’m not going to buy one product because it’s got DRM and an identical one hasn’t. That’s just the paralogia of a marketing droid.

  14. “It’s a fine and balanced approach to copyright law”

    Not really. It still assumes that honest people are guilty until proven innocent (and said proof will never happen in the eyes of the DRM or the people pushing it). It still preemptively polices people in their own homes, using their own gear, without a prior record or a warrant to justify the intrusion.

  15. Yay for Brazil!

    You are now rivaling Iceland and India for the place I will move to when my home nation decides to elect Sarah Palin in 2012. ;)

  16. I can’t beleive some people have a view that the majoirity want DRM. Clearly these people havent a clue. Personally I will never accept electronic DRM in any form and let me tell you why….

    Electronic DRM = CPU cycles = more energy consumption.

  17. I like reading. One thing I like about electronic books is their search feature. But I hate DRM. So what to do? Solution: I buy paper books on which allow me to search inside them. Everybody wins: the author gets paid, I get a searchable book and a book that I can carry around that doesn’t need a computer to read it.

  18. For this and many many thing i feel very proud of my country. We have a lot of things to improve but i know we are doing hard. I loved to listen your comments and i would like to thank you all for your good opinions. I do agree DRM is a bad thing but our law institutions are far from ballanced but that is most because of the people ruling them. Any way you are all wellcome here! Thank you.

  19. laws are just laws…
    i live in brazil, i am a law student… you have to pay atention in two things, the law and the aplicability of that law… in brazil, we have one of the most improved systems of laws in the world… but out of the laws field, just dont have functionality.

  20. I’m Brazillian and i live in Brazil,finally something good in our laws, Brazil is a beatifull place to live and is a very happy country but our constitution and laws sucks, most of them.

  21. Hello, sorry if my English is a drug right now, I’m still learning this language yet. I am Brazilian, I notice as a geographer in fact a loss of rights in the European and North American world, could include several reasons for such actions in a more special is the fact that this world does not really matter with the individual human right , only with the most amount of profit that will have on each other, not caring about anything else. And thank you for those comments of my country, demonstrates the fact that the world recognizes, as we suffer with a large media control in Brazil.

  22. Hello, I am Brazilian, currently follow a career as a geographer, see the discussion on this topic I found interesting that there are opinions about law and individual human rights. By following the current world order North American, and unfolds as his economic policies, and easy to see (and not difficult to see any human being) that the loss of individual rights is something growing, some means to protect the rights of big corporations and maintain the domestic industrial monopoly, look how many times renowned companies of the United States had or still has lawsuits by European handling, breaking monopoly and consumer rights
    Forgiveness to some users, speaking of Brazil in relation to crime, and disregard that such occurrence of violence in the United States do not occur, the world asks for changes, the human system needs to change, and to begin human values have to go back and stop this insane control of the corporations that only view the profit and nothing else.

  23. I am Brazilian and I read a story is very suspicious because I’m also a lawyer
    here in Brazil and I know that things here are not like the law shows are well
    different when you live eight years on the mantle of the most corrupt government in the last 100 years, so when I see this kind of statement I am worried.

    I am against DRM, but I would like to know what law is the big problem is because of
    Brazilian for those who do not know, are taxes, an example of this is a product
    sold in the U.S. for $ 100 might cost up to $ 1,000 on account of taxes, and apologized as the copyright.

    I commented about this on a website and said he was concerned because it is not easy as said to be a lawyer in a country where all the cuts are political and
    judge favorable to the government, especially for positions of judges in courts …

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