Supreme Court ratified the understanding about payment of copyrights for streaming

In an enforcement action of legal precept against OI, the Brazilian Central Agency of Collection and Distribution (ECAD) obtained a favorable decision from the Superior Court of Justice (STJ), in relation to copyright´s collection in musical broadcast on the internet via streaming. The controversy was about knowing whether the broadcast music via streaming, be it by simulcasting or webcasting, fits in the concept of public performance of a music work, in the way of characterizing a new copyright collection by ECAD.

The reporting judge, minister Ricardo Villas Boas Cueva, follow by the majority of ministers, understood that broadcasts via streaming are modalities of economic exploitation of music works that demand previous and express authorization of the rights’ holders, framing itself in the article 29, item VII, VIII, IX and X, of the Law on Copyright and Neighboring Rights (No. 9.610/1998).

Consequently, on the grounds of article 68, second paragraph of Law on Copyright and Neighboring Rights, the Superior Court understood that the mere display of such works to the access of a collectivity on the digital environment, which may access at any moment the catalogue available there, this itself characterizes the public performance.

Thus, notwithstanding of the interactivity criteria, simultaneity in the content reception and myriad of people, the internet was considered by Superior Court a place of collective frequency. Similarly, broadcasts via streaming are an act of public performance within the right´s modality of communication to the public (article 5, item V, Law No. 9.610/1998), being lawful the collection and distribution of copyright by ECAD.

This applies both for the webcasting modality in which the user can interfere in the order of broadcast, for example in the creation of playlists´ reproduction, as in the modality of simulcasting, where the same programming shall be accessed through the radio or television simultaneously. In relation to the latter, Superior Court understood that it constitutes an autonomous medium of intellectual work´s use that may give cause to charges for the ECAD not configuring “bis in idem”. That occurred because payment is already done to the entity for the broadcast via radio or television.

The court decision served the normative ruling no. 2 of May 5th 2006, enacted by Minister of Culture which established specific forecasting for copyright charges in the digital environment through collective management association. Considering then, the occurrence of public performance on digital platforms, including streaming services “in which there is broadcasting with the purpose of using the work by the consumer, without the transfer of ownership or property.”

Finally, Minister Villas Bôas Cueva highlighted the reciprocity principle that allows both charges from foreign repertoire hereby enforced and the remittance to the home country association regarding the transferring to Brazilian associations of the amount collected by the Brazilian repertoire enforced there.

According to Minister Reporter, with the growth of revenue resulting from streaming services, it is necessary to seek balance between the music creators´ interests and the companies which exploit music. After all, this plenary body decision aims

Azevedo Sette Advogados