Intellectual Property and Podcasts

What would you say is the biggest concern involving Podcasts and how can IP protect such productions?

The podcast is a type of media that is becoming increasingly popular in Brazil and around the world.
In essence, it is an audio program that is made available on the internet.

The Copyright Law, No. 9,610, applies to the creators and right holders of intellectual works.
Since podcasts are creative works, they have all the characteristics of an intellectual work, as well as falling under items II and VI of article 7 of the LDA, and are therefore protected by this law.
When producing a podcast, in order to avoid conflicts that can even generate fines of exorbitant amounts, the producer must pay attention to the provisions of national legislation.

Article 22 of Law No. 9,610 states that the author of the work has moral and property rights over it.
With regard to moral rights, the author is guaranteed the right to claim authorship, to have his or her name used during the use of the work and to oppose any modifications to the work that could harm him or her, for example.

 

CONCERN 1: Spreading Fake News
Nowadays, we often see information distorted and news manipulated on the web.
With the popularization of podcasts, what began to happen frequently was the sharing of edits and cuts to the voices of the participants, with the aim of creating fake news or taking the speech out of context.
Under copyright law, the author of the podcast has the right to ask for the edit to be removed from the platform where it was posted.

LDAArt. 24.
The author’s moral rights are:

IV – to ensure the integrity of the work, opposing any modifications or the practice of acts that could in any way harm it or affect him, as the author, in his reputation or honor;

VI – to withdraw the work from circulation or suspend any form of use already authorized, when the circulation or use implies an affront to its reputation and image;

CONCERN 2: Violation of Personality Rights Personality rights are non-renounceable and non-transferable, ranging from the rights to privacy, identity and information to the right to freedom of expression.
These rights are also responsible for guaranteeing citizens’ right to their name, image and voice.
In other words, any use of someone’s name, image or voice requires their written authorization and consent.
This need for authorization also applies to cases where there is no commercial interest in the use and the only exceptions are when the use is intended for the administration of justice, the maintenance of public order or has some journalistic interest.

In the case of podcasts, it is important to pay attention to the interviewees who participate in them.
These participations, according to our legislation, must have written authorizations stating the purpose of the participation, its territorial scope and whether or not there are commercial interests.
It is also interesting to obtain permission to edit the answers and publish them on the podcast, which may or may not have commercial interests.

CRFB: “Art.
5º Everyone is equal before the law, without distinction of any kind, and Brazilians and foreigners residing in the country are guaranteed the inviolability of the right to life, liberty, equality, security and property, under the following terms:

X – people’s privacy, private life, honor and image are inviolable, ensuring the right to compensation for material or moral damage resulting from their violation”

CC: “Art.
20.
Unless authorized, or unless necessary for the administration of justice or the maintenance of public order, the dissemination of writings, the transmission of speech, or the publication, display or use of a person’s image may be prohibited, at the person’s request and without prejudice to compensation, if it affects the person’s honor, good reputation or respectability, or if it is intended for commercial purposes.
(See ADIN 4815)

Sole paragraph.
In the case of a dead or absent person, the spouse, ascendants or descendants are legitimate parties to request this protection.”

 

CONCERN 3: More than one “author” of the podcast The vast majority of podcasts have two hosts or a host and a guest.
What counts as an author is whoever has an effective part in the creation of the content to be shown and not simply whoever revises or updates it.

The Copyright Act states that the rights of “co-authors” in this case must be exercised by mutual agreement.
In the event of controversy, voting may be an alternative and the option chosen by the majority will always prevail.
For this reason, great caution is advised when involving someone else in the podcast creation process, precisely because they, even if they are the interviewee, also have a decisive say in the work’s decisions.
It is for the same reason that podcast contracts should always be very clear.

Once a podcast has been created, only its authors have the power to choose what happens to its content.
Through this measure, the Copyright Act guarantees that the author’s work will not be misused, which ends up encouraging the creation of new works.
By giving the author the power to make decisions about the fate of the podcast, the law, in a way, guarantees them the right to play a leading role in directing the income that will come to the detriment of the work.

CONCERN 4: Use of third-party works What also happens frequently in podcasts is the use of third-party works.
It should be noted that these works are also protected by law and, as a rule, their authors must authorize their use in this type of content.
Ideally, you should obtain a license agreement or a one-off authorization agreement to avoid possible future legal complications.

However, to the delight of podcast creators, the Copyright Act provides for some exceptions to this rule.
The exception corresponds to the use of small excerpts from third-party works without a common purpose of the old work, the use of which would not constitute a violation of copyright.
In addition, for the use to fall within the exception, it must not cause any kind of damage to the original authors.

Discussion: What is a small section?
The law doesn’t have a specific limit or definition for the “short stretch” in question.
To avoid problems, just use the shortest stretch you can without any kind of commercial exploitation.

LDAArt. 46.
It is not an offense against copyright:

VIII – the reproduction, in any work, of small excerpts from pre-existing works, of any nature, or of an entire work, in the case of fine arts, provided that the reproduction itself is not the main purpose of the new work and that it does not harm the normal exploitation of the reproduced work or cause unjustified damage to the legitimate interests of the authors.

ATTENTION: Regardless of anything else, any use of a third party’s work must be accompanied by attribution of the authorship of the original work, as this constitutes the moral right of the author

 

CONCERN 5: The platforms on which podcasts are made available Streaming platforms are now the main means of transmitting podcasts.
You should always pay attention to how each platform deals with copyright BEFORE making your content available there.
The
platform can strictly alter the measures that must be followed when using third-party works or posting your own work, for example.

In the cases mentioned in concern 4, the platform itself can pass on the podcast author’s monetization to the author of the original work used.
On the other hand, the platform may see the removal of the episode as the best measure to take in these cases.

If you have any questions about Intellectual Property, consult the specialist lawyers at PDK Advogados.

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