Função social da propriedade intelectual : o patrimonialismo autoralista em ontraste com o direito de acesso à cultura / Social function of intellectual property: the contrast between the copyright s patrimonialism and the right to access to culture

AUTOR(ES)
DATA DE PUBLICAÇÃO

2009

RESUMO

The current Brazilian Constitution inserts property rights in the list of those referred as fundamental rights and, at the same time, it determines that property tangible or intangible, corporal or intellectual - must fulfill a social function. Concomitantly, the text of the Constitution anticipates that access to culture is also a fundamental right, as well as it determines that it is the States responsibility to guarantee full access to cultural rights for all. Copyright, which is the object of this study, is bound to intellectual property and it is divided into moral and patrimonial aspects. The former is supposed to protect authorship, while the latter is about protecting its use, publication or reproduction, also transferrable to heirs for as long as law establishes. Federal Law number 9.610/98 established a period of 70 (seventy) years restriction of patrimonial, artistic, scientific and literary creation after the authors death, which then falls into public domain, that means free use by individuals and the collectivity after that seventy-year period of time. There is, therefore, at first, a conflict of interests, which is, the patrimonial authorship right in contrast with the access right to culture, followed by the solution to that conflict which would definitely not be the fulfillment of a legal decision in favor of one of the parties but an attempt of harmonization of both rights guaranteed by the text of the Constitution. However, there is something false about the conflict discussed above: actually, there is no pure conflict of interests at all, as both of them are convergent interests, once the authors intention is that its work will be known and appreciated by the collectivity, as well as it is the will of society as a whole by its individuals and groups - to have access to cultural goods, getting to know them, learning from them, using them for pleasure, leisure, improvement and development. This idealized harmonization would provide a virtuous cultural cycle, symbolized by the chain author - work collectivity - work - author of constant and desirable feedback. There are many possibilities to provide access to culture, amongst which, the softening of the inflexible existing patrimonial authorship in Brazil, which would be the adoption of measures such as: the enlargement of legal flexibility related to the collectivity fruition of copyrights and connected rights; a wide spreading of the existence of cultural goods, including the ones fallen into public domain; enlargement of the States programs of incentive to cultural production and access. We strongly believe such steps would develop the cultural cycle, contributing for the fulfillment of the social function of the copyright.

ASSUNTO(S)

cultura - dissertaÇÕes direitos autorais - dissertaÇÕes direito constitucional propriedade intelectual - dissertaÇÕes

ACESSO AO ARTIGO

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