The privatization of copyright enforcement: the Brazilian context
| Autor | Pedro Nicoletti Mizukami |
| Páginas | 154-159 |
Page 154
See note 63
After years demanding stronger public sector response to copyright infringement, IP industries have now shifted to the strategy of forcing governments to assume the role of facilitators in agreements between private parties. In Brazil, this tendency is clearly noticeable in industry demands related to copyright enforcement in the digital environment
Page 155
within the National Council on Combating Piracy (CNCP – Conselho Nacional de Combate à Pirataria).
The CNCP: a brief history
The year of 2005 is a turning point in the history of copyright enforcement in Brazil. It was in 2005 that the Brazilian government inally gave in to the pressure exerted by the IP industries through the US government and deinitively internalized the international IP enforcement agenda. That was the year when the National Council on Combating Piracy and Crimes against Intellectual Property (CNCP – Conselho Nacional de Combate à Pirataria e Delitos contra a Propriedade Intelectual) effectively became operational, with the mission to serve as public-private forum for the discussion of IP enforcement policy and coordination between industry and government. [1]
The events that led to the creation of the CNCP were documented in detail by the Media Piracy in Emerging Economies report, available in English, Spanish, Russian and Chinese. That story is reasonably long, but can be summarized as the result of years of pressure on Brazil promoted by the IP industries through the United States Trade Representative (USTR) and its Special 301 reports. The validity of the "pirate country" lists produced for Special 301 is extremely ambiguous in a post-WTO world. It is undeniable, nonetheless, that the lists had a fundamental role in the process that resulted in the creation of the CNCP in Brazil and in the drafting of a National Antipiracy Plan, currently in its fourth edition. Regardless of the fact that commercial sanctions can only be imposed after a WTO ruling and never unilaterally – strongly diluting Special 301’s power to intimidate – the lists continued to serve as fuel for effective pressure in Brazil halfway through the past decade.
While internationally Brazil defends a progressive IP agenda, and was an important actor in the debates that led to the approval of WIPO’s Development Agenda (2007) and the Marrakesh Treaty (2013), the domestic context is considerably more ambiguous. As an illustration, at the same time that Brazil was presenting a strongly argued defense of evidence-based policymaking, and demanding respect for Recommendation 45 of the Development Agenda at the 5th WIPO Advisory Committee on Enforcement, the CNCP was still widely publicizing three spurious numbers on the damages supposedly caused by piracy to the Brazilian economy. These numbers, we found in Media Piracy in Emerging Economies, had no clear source or methodology.
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Contradictions like this are to be expected in complex political processes, such as those related to intellectual property. The existence of the CNCP, furthermore, gives Brazil the opportunity to criticize maximalist IP policies in international fora, backed by the argument that international standards on IP enforcement and industry demands are all being met domestically.
Nonetheless, the Ministry of Justice eventually demonstrated some sensibility to the academic debates on copyright and piracy and criticisms of antipiracy discourse. For the 2012-2014 mandate, the Ministry admitted as members of the Council the University of São Paulo’s GPOPAI and the Center for...
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