Changes to the Intellectual Property Law

Decree 765/2024, published by the Executive on August 27, 2024, introduced significant changes to the IP Law by amending articles 33 and 35 of Decree 41223/1934. The Decree seeks to adjust the current definition of public performance in article 33 (last amended in 1945) to align with the 21^st century, and to update the terminology of article 35 to include the new technologies used when a work is performed in public.

The amended article 33 redefines the concept of “public performance” as that which takes place—regardless of its purpose—in a place of public access, [that is] free, and addressed to a plurality of persons. The Decree reinforces the definition, clarifying that there will be no public performance when it is made in a private environment, regardless of whether it is of permanent or temporary occupation.

The now broader concept of private environment—which would be exempt from payment for public performance—seems to encompass private and temporary venues, such as hotels and events taking place in venues, which are not of public access, free, and addressed to a plurality of persons, i.e. private events.

The Decree also adds that “public performance” includes those made by performers or singers, as well as through mechanical, electronic, or digital means, including the Internet. Consequently, it clarifies that it is necessary to have the authorization of the owner of the right for performances in the digital environment.

The amended article 35 provides that:

• the express authorization required for the public performance may be granted by the owners of the right, their successors, representatives, or the management collecting societies representing them,
• notwithstanding the exclusive rights granted by law to the owners, their successors, representatives, the collective management organizations representing them, or a platform authorized by them to offer licenses for that purpose, they will have the right to receive equitable remuneration from any person who occasionally or permanently obtains a direct or indirect economic benefit from the public use of a work and, in general, any person who performs a work publicly by any direct or indirect means,
• public performance will be deemed to be duly remunerated when an establishment uses a public performance license granted by the right owners, their successors, representatives, collective management organizations, or a platform authorized by them to offer licenses for that purpose.

This article poses some new scenarios to consider. Owners of rights, successors, and representatives seem to be assimilated to management collective societies raising the question of whether authorization by the former would suffice without needing to participate in the management of collective societies. Additionally, platforms authorized to offer licenses are now included among those entitled to grant authorizations for public performance. Finally, the reference to the right to receive equitable remuneration from those who occasionally or permanently obtain a direct or indirect economic benefit from the public use of a work appears to somehow contradict the broadened concept of private environment, where there would be no public performance as established in article 33.

The amended article 35 also includes an exception to the payment for occasional uses of a didactic nature or patriotic commemorations, in official educational establishments, or those authorized by the State which—with some other requirements—are already included in the IP Law.