[cc-br] Introduction and a few thoughts on Brazilian CC

GUIGO - Guilherme Alberto de Almeida guialmeida at tozzini.com.br
Mon Jun 2 16:50:54 EDT 2003


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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