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Subject: Creative Commons Brazil

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  • From: "GUIGO - Guilherme Alberto de Almeida" <guialmeida AT tozzini.com.br>
  • To: <julian AT juliandibbell.com>, <cc-br AT lists.ibiblio.org>
  • Cc:
  • Subject: [cc-br] Introduction and a few thoughts on Brazilian CC
  • Date: Mon, 02 Jun 2003 17:50:54 -0300

Hello, everybody,
(this is a long e-mail. Sorry for the lack of concision...)

well, first of all, let me introduce myself:

My name is Guilherme Alberto Almeida de Almeida, and I am a Lawyer on
Cyberlaw and Intellectual Property issues in São Paulo. I have been following
Creative Commons steps for quite a while, and recently I had the opportunity
to meet personally some of the group at the Ilaw conference, held in Rio.

As for the language for this mailing list, I think that both Portuguese and
English are suitable. I have not an accurate idea of the present members, and
in case we are only among Brazilians (and I would include Brazilian "Citizens
of Honour", such as Barlow and Julian, in this list), I think Portuguese
could do. More than that, in case we start more complex legal discussions,
Portuguese may become a real necessity in order to allow a complete
development of ideas.

So far, jointly with Omar Kaminski, Carolina Rossini and Guilherme Carboni, I
have been discussing some relevant issues regarding the porting of CC
licenses to Brazilian legislation. I will just drop some lines about our
recent thoughts. These are mostly my conclusions, from our recent
discussions. Therefore, good ideas may be credited to them, and bad ideas to
me ;-) :

1. a first analysis should be deemed to the fact of the enforceability of
electronic licenses in Brazil. I do think this is feasible, but I think we
should discuss a little, specially bearing in mind that copyright legislation
in Brazil foresees that the construction of agreements dealing with
copyrights shall be made in a restrictive way. Also, the nature of a "general
license", on a click-through format, should also be discussed, in order to
spot out potential problems and eliminate them.

2. Also, Brazilian legal copyright system determines that moral rights (such
as the attribution right) cannot be waived. Modern theories may question this
assumption, but I think this also should be discussed within the group. An
unavoidable consequence of this situation, in case we reaffirm this legal
assumption, is that all licenses in the Brazilian version of the CC license
should have the "require attribution" clauses. This is another topic over
which I consider we should have some more discussions.

3. Also, in my opinion, "Share alike" provisions could face some problems in
view of Brazilian legislation. As per my understanding, the creation of
derivative works may be authorized by the author, which could even impose
some restrictions to the development of such derivative work. However, it is
still not clear to me whether an original author, in view of the Brazilian
Legislation, could impose the free distribution of any derivative works
performed from his original work. In a first moment, I am inclined to imagine
that a derivative work shall be considered as a new work, with original
rights for the new author, as regards its commercial exploitation and other
patrimonial rights. However, I recognize this as a controversial issue, and I
would appreciate the input of further members of the group to this question.

4. Another topic that may need some further discussion is the irrevocability
of the licenses. I think this is feasible, but this is also a controversial
issue, in my humble opinion. Further to that, it is important to discuss
again, in this topic, the real nature of the 'general license'. I imagine a
general license like a 'global offer', which may become a contract, as long
as someone accepts it. In this context, an agreement executed (the use of the
work by a third party, on the terms of the license, for instance) could have
irrevocability clauses, and they would most probably be deemed as
enforceable. I noticed that CC licenses authorize the author to "release the
Work under different license terms or to stop distributing the Work at any
time", provided that such activities shall not withdraw the CC License which
shall continue in force and effect. This may suffice, but I would like to
hear the Brazilian lawyers involved here.

Well, these are only some of our previous understandings. Maybe we could
discuss them separately, in further e-mails. In case you find that any other
legal aspects of Brazilian Legislation should be discussed, as long as they
represent obstacles to the porting of the licenses, I would be glad to
discuss them as well.

I would also like to hear about the conclusions of the meeting with Minister
Gil. As I live in São Paulo, I could not attend to such meeting. If any of
the presents could forward his/her comments, I would be really glad.

Finally, I would also appreciate to hear a bit more on the intended scope of
both "Creative Commons Brazil" and "Canto Livre" Projects. It seems to me
that they are closely linked, as long as they share mostly the same concerns,
but I imagine that they can also be more effective if they remain
independent, in a certain way. But I think it is important that we have a
clear vision of the scope and intention of each of the projects, so that we
can fully participate in their implementation.

Kind regards,

Guilherme de Almeida



Guilherme Alberto Almeida de Almeida
guialmeida AT tozzini.com.br
www.tozzini.com.br
Tozzini, Freire, Teixeira e Silva Advogados
R. Libero Badaró, 293, 21o. andar
01095-900 São Paulo SP Brasil
Tel. (5511) 3291.1000


>>> "Julian Dibbell" <julian AT juliandibbell.com> 02/06/03 16:14 >>>
Greetings, all:

Welcome, once again, to the cc-br mailing list. As project lead (pro
tempore) for Creative Commons Brazil, I look forward to helping make this
list the central forum for discussing -- and collaborating on -- the porting
of the Creative Commons licenses into the Brazilian legal system.

I'm also excited to hear that some of you have already begun working
together on this project, and I don't want to disrupt any conversations in
progress. But if it wouldn't be too awkward to move those conversations over
here where the rest of us can benefit from them, by all means please do so.

And now, two more requests, and a question:

1. Can we hear from those of you who haven't yet introduced yourselves? No
elaborate commentary required (though you're welcome to get as elaborate as
you'd like). Just a quick introduction.

2. Can one (or more) of you who will be attending the meeting at Gilberto
Gil's house in Rio this afternoon volunteer to take notes and give us a
report?

3. The question: What are your thoughts on the appropriate language for this
list? English or Portuguese? (Keep in mind that I can read Portuguese just
fine [and write it if I have to].)

Julian


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  • [cc-br] Introduction and a few thoughts on Brazilian CC, GUIGO - Guilherme Alberto de Almeida, 06/02/2003

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