Fair use: what is the acceptable use of an intellectual work

I’m sure you, like me, have already come across a technology event that has no translation into Portuguese or into another language you don’t understand, right? And then we need to use an online translator, but if the program is live, there is no time to translate and without a doubt we lost that information.

Since the beginning of the pandemic, large companies, especially technology companies, started to launch their products through online events on their own channels maintained, for example, on YouTube – but everything that is said here, can also be extended to other platforms – without the physical presence of the public or specialized media. Virtually all of these transmissions are not carried out with simultaneous translation, only in English.

Samsung, Apple, Xiaomi, Microsoft and several other technology companies already had this type of event, but with the pandemic that has ravaged the world since the beginning of 2020, many have done events like this between 2020 and 2021 without any translation.

In this case, taking into account that we are more than 200 million Brazilians, and that, according to data from British Council, only 5% know how to communicate in English, and that only 1% are really fluent, 190 million or 198 million people would not have the right to access information.

So it is. How are you, my dear reader, going to be able to choose between one or the other release? How will you know if a product is better or worse than the competition, and if that “launch” is really a launch or a rehashed product, if we can’t understand what is being said? It does not give. We don’t have information.

With this in mind, some people and companies took the initiative to broadcast the programs live on their social media channels, in order to provide the public with details about these products and services. By doing so, they provide a relevant task of disseminating information to all Brazilians.

Example of event transmission with simultaneous translationSource: TecMundo

But the “owners” of the reproduction rights – which is one of the neighboring rights on these works -, who knows why, prohibit tooth and nail that any third party does this simultaneous transmission, claiming that as the reproduction right would be only of them, only they are the ones who can use this material.

And look… it’s no joke that these companies invest money to control who is doing this. They hire lawyers and monitoring companies around the world to inspect and meet, immediately notify the platform where the transmission is being made through the call strike, and demand the immediate and automatic termination of this transmission, which happens a lot.

In Brazil, the notice and take down, since the accused must always be given the opportunity to argue. Otherwise, there would be a prior conviction without opportunity for defense, which is prohibited by item LV of the article 5 of the Federal Constitution.

Of course, copyright is protected by international law and the Federal Constitution, since it is a property. But the Constitution also determines that property will serve its social function, in item XXIII of article 5.

The social function is to serve something that can be converted into benefits, and here the benefit is precisely to inform and inform the consumer in general about the products and services placed on the market.

This follows what is in item II of the article 4 of the Marco Civil da Internet, which says that the right to information should be one of the goals in the use of the internet, but to the extent that these companies prohibit the dissemination of this material, they end up violating this right and restrict public knowledge, and violate the right to information provided for in item I of article 3 of Law 12.965/2014.

The problem is that no legal system in the world can keep up with the constant profound changes that the internet brings to our daily lives, leaving the Judiciary with the arduous task of interpreting what can and cannot be considered fair use of a intellectual work.

I am not, under any circumstances, saying that there is an unrestricted right to copy any material whatsoever and I do not intend to do so, but that on certain special occasions where there is relevant interest from the general public with the live broadcast of world events that only are in English, it can be done, in good faith, simultaneous translation to be understandable to the general public, but always making it clear who owns it, so what can be done?

YouTube moneySource: Shutterstock

How to make simultaneous translation of an event on your YouTube channel without breaking the law?

With this in mind, several people and companies have followed these transmissions and carried out the simultaneous translation of what is presented, in order to inform the consumer market, often turning off the monetization of that video and that transmission. For those who don’t know, “monetization” is the display of advertising that is done on all videos of a channel that is enabled as being relevant to serving advertising, and if this monetization is disabled, it can be said that the intention is informative and technical , without commercial connotation and without earning anything.

Look people! No profit. If someone has an attitude like that, it has to be without the intention of getting right out of it. This is one of the requirements to be observed in the so-called 3-step rule, to find out if there is an acceptable use of a work.

These steps can be present when, for example:

1. it is a special case (an isolated and very important event for the world community that consumes electronic devices in general, but all in English);

2. that does not affect the use of the commercial material by those who have the retransmission rights because there is no appropriation as if the material were from a third party;

3. do not cause any harm that tends to diminish your profits.

Under Google’s YouTube rules, when monetization is disabled, it can be seen as one of the requirements of “fair use”, or acceptable use.

Acceptable use on YouTube

Acceptable Use is a legal doctrine that authorizes the reuse of copyrighted materials in certain circumstances without the need for permission from the content owner.

Acceptable Use Guidelines

Each country has different rules about when it is allowed to use some material without the permission of the copyright owner. For example, in the United States, commentary, analysis, research, teaching, or reporting works may be considered acceptable use. Other countries have a similar concept, called acceptable treatment, which may work differently.

Courts analyze possible acceptable use situations according to the specific facts of each case. We recommend that you seek legal advice before uploading videos that contain copyrighted material.

At no time are the companies holding the rights to these transmissions harmed, on the contrary, since by retransmitting the events in Portuguese and commenting on them, they benefit directly, as consumers can have access to information about the new products and understand what their characteristics are and decide to buy them. Or not, and that may be why some struggle to prevent the dissemination of information.

Fair use – or fair use in English – consists of a set of guidelines established in 1976 in Title 17, paragraph 107, of the US Copyright Statute, which allows the use of copyrighted material without the user infringing the rights of that content when, for example, performing the use for the purposes of comment, criticism, research, reporting and education, and not for profit.

THE Digital Media Law, maintained by Berkman Center for Internet & Society, has a legal definition of what fair use is, in my free translation into Portuguese:

The policy behind copyright law is not simply to protect the rights of those who produce content, but to “promote the advancement of science and the useful arts”. U.S. Const. Art. I, § 8, cl. 8. Since allowing authors to assert their copyright in all cases would actually make it difficult to do so, first the courts and then Congress adopted the fair use doctrine to allow the use of copyrighted materials deemed beneficial to the society, many of whom are also entitled to First Amendment Protection. Fair use won’t allow you to simply copy someone else’s work and profit from it, but when your use contributes to society, continuing public discourse or creating a new work in the process, fair use can protect you.

A gentleman named José de Oliveira Ascenção (who is just one of the world’s leading authorities on copyright and who was my Professor), wrote an article called Fair Use in Copyright where he talks about what would be the requirements for configuring this right of use, and mentions 4 criteria that are necessary:

1. The purpose and nature of the use, namely if it is commercial or for non-profit educational purposes;

2. The nature of the work – It is to be assumed that in more factual works the scope of fair use is greater than in more imaginative works;

3. The quantity and quality of use in relation to the overall work;

4. The incidence of use on the current or potential market for the work.

It is worth mentioning number 2 of article 9 of the Berne Convention, which authorizes Member States to regulate internally the conditions for reproduction following the so-called Three Step Rule, that is, in special cases, provided that such reproduction does not affect the normal exploitation of the work or cause unjustified harm to the author’s legitimate interests.

Thus, even though Brazil has not yet adopted the possibility of acceptable use of intellectual works, it is clear that the rules of fair use can and should be applied when there is a collective social interest in certain retransmission, provided that such retransmission follows the rules explained above, item III of article 46 of law 9,610/98 is applicable.

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  • Art. 5. Everyone is equal before the law, without distinction of any kind, guaranteeing Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, in the following terms: XXIII – the property will serve its social function;
  • Art. 4 The discipline of internet use in Brazil aims to promote: II – access to information, knowledge and participation in cultural life and in the conduct of public affairs.

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