Fighting Online Piracy in Brazil and Argentina
The Online Marketplaces
In Brazil, internet access has been growing rapidly and so have legitimate services for online delivery of copyright materials: for instance, in 2014, digital revenues of the music industry in Brazil increased by almost 31%, which is an incredible number considering that Brazil is the world’s 9th largest music market. Platforms like Crackle, HBO, Netflix, Globo Video, iTunes/Apple Brazil and Mundo Fox offer low-cost movie streaming and video games are available through legitimate online providers like Xbox Live, PlayStation Network and Nintendo eShop. However, online marketplaces have to face a growing issue, which seems to increase as quickly as the internet’s audience: the issue of online piracy.
A similar situation exists in Argentina: since 2006 the country has been on the Priority Watch List of the Special 301 Report, drafted by the Office of the United States Trade Representative (USTR), which shows a critical level of piracy online (Brazil is “only” on the watch list).
Online Piracy: a Widespread Issue
Online piracy has been using two prevalent channels. The first consists in the so-called cyberlocker services: sites targeted to the local audience that link to infringing distribution hubs, located elsewhere. The referring site is in Portuguese or Spanish and sometimes hosted in Brazil or Argentina, while the hub, that ultimately provides the content, is located outside the continent. The second channel is file sharing through peer-to-peer (P2P) networks. A 2014 study by TrueOptik Data Corp. estimated that the value of the unlicensed files exchanged in Brazil through BitTorrent (a famous P2P network), has reached 100 billion USD, ahead of India, U.S. or Western Europe.
Tackling the problem effectively means balancing the interests of two entities: the content producers, like film production companies or music labels on the one side, who want to see their copyright protected; and internet service providers (ISPs), like Google/YouTube or hosting providers on the other, that may indirectly contribute to spreading pirated materials.
The Legal Weapons
In Brazil, the legal framework for anti-counterfeiting includes the Copyright Law (Law 9,610/98). As it seemed clear that the Copyright Law contained outdated weapons to combat cyber piracy, in 2014, the Parliament enacted the Marco Civil da Internet (Law 12.965/2014) aiming at establishing “principles, guarantees, rights and obligations on the use of the Internet in Brazil.” With regard to copyright infringement, the Marco Civil provided against the attribution of liability to ISPs. According to the case law of Brazilian Superior Court of Justice, infrastructure providers, internet access providers and providers of hosting services for the storage of data are all to be considered ISPs.
Marco Civil established that ISPs are not responsible for the content published online by users unless they refuse to remove the material after a court order has been enacted. In other words, the provider will only be subject to civil liability for copyright infringement if, after a specific court order, it does not take steps to delete the content, with the exception of material containing private sexual content. In this case, the intermediary could be considered liable for damages if failing to act upon a notification coming directly from the user.
In Argentina, a bill regarding ISPs liability was introduced in 2013 but has not yet become a law. However, the Supreme Court has come to conclusions very much in line with the Brazilian legal framework. In the 2014 landmark case Rodríguez v. Google Inc. (file number 99.613/06) the judges have stated that the ISP is responsible only if it is correctly informed by a private notification directly by a user (when de damage is evident and rude) or by a take down order issued by a court or an administrative body (When the harmful content requires clarification).