The Shackles of Copyright Law: Brazil’s Tecnobrega

Originally published in the Dec-2011 issue of The Music Business Journal – Berklee College of Music

The crisis in the recording music industry has diminished the breadth and diversity of record label catalogs at a time when there are more artists and musical works than ever. Around the world, moreover, local and regional music may be in danger of becoming marginalized as the traditional distribution structures focus just on pasteurized product. And yet there is hope.

New ‘open business models’ are being considered overseas and involve the creation and dissemination of artistic and intellectual works under a more flexible and autonomous copyright regime. If successful, it is argued that such a regime would generate more revenue for the music stakeholders and cut prices for consumers.

A book by two Brazilian writers illuminates the approach and may well shape thought in years to come.

Its title, Tecnobrega–O Pará Reinventando o Negócio da Música (’Tecnobrega-The State of Pará Reinvents the Music Business’) at first may seem pretentious.  But the authors are Ronaldo Lemos, Director of the Center for Technology and Internet Society at the famous Getulio Vargas Foundation (FGV) in Rio de Janeiro, and Oona Castro, FGV ‘s Project Leader.  Lemos, in particular, is active in academic discussions of intellectual property law around the globe, has been an articulate spokesman on copyright legislation for emerging economies, and serves as the director of Creative Commons in Brazil.

The work of Castro and Lemos is scholarly and relies on in-depth mining of qualitative and quantitative data in situ. It has become a part of the Open Business Project, a global initiative between Brazil, the UK, Nigeria, Chile, Mexico, and South Africa that is partly funded by Canada’s International Development Research Center (IDRC). Brazilian think tanks FIPE, an economics research foundation, and the Instituto Overmundo were also involved. Lemos and Castro also advise Brazil’s Ministry of Culture, lately an international advocate of a new legal architecture for music.

Tecnobrega, the music from which the name of the book is derived, is a genre from the state of Pará.  Pará is far removed economically, geographically, and culturally from the main centers of the country, Rio and Sao Paulo.  Brega, a kitsch regional style, became mixed with European Tecno, but the major labels or mass communication media never picked it up. (even though the old Brega was widely popular across Brazil during the 1980s, the genre faded as the industry declined). Yet it has now returned morphed into a new and complex ecosystem that provides revenues in the millions and employment for thousands. The key appears to have been both a loose copyright enforcement policy and an informal commercial structure that enabled the growth and promotion of the genre.

The traditional paradigm illustrates, among other things, the exchange between composers, producers, record labels, and publishers. This is not how the tecnobrega model works, for the interaction there is between the aparelhagens, i.e the sound system companies, the artists, the live and studio DJs , the promoters,  the venue managers, the mass reproducers, and the street vendors.

According to Castro and Lemos, the sequence of tecnobrega is as follows:

(i) artists, either  solo acts or  bands, record songs in self owned or other studios; (ii) the best productions are sent out by the studio DJs  to mass copiers; (iii)  street vendors  sell CDs locally at an affordable price, typically $2.50; (iv) DJs play their choice of songs at aparelhagem parties; (v) artists that have popular songs assemble bands to make performances; (vi) new CDs and DVDs are recorded and sold at concerts; (viii) the cycle is repeated while success lasts.

Artists are compensated primarily through live performances at an average of $1,200 per show.  Since royalties are not a feature of that business model, musicians are driven to perform their own songs, and 84% of the artists are also composers. In fact, what usually happens is that composers only form bands after their songs have become popular by either being part of compilation CDs or because they were performed at aparelhagem parties. Artists that are solely composers are rare, but such artists tend to write for jingles used in broadcasts and political campaigns as well as for songs that are exclusively commissioned to pay homage to the aparelhagens.

The aparelhagens, in fact, are a crucial element of the tecnobrega business. These sound system companies are hired to provide large setups that combine computers, sound, video, and lighting technologies for large parties in which tecnobrega music is played by DJ’s. There are four major companies running aparelhagens throughout the state, and several hundred of smaller ones. Aparelhagens are mostly family businesses. Local promoters are then responsible for organizing the parties and subsidizing the acquisition of new equipment for the aparelhagens—a major selling point in the eyes of the attendees. Ticket prices typically range from $5 to $10, with an attendance range between 3,000-5,000 people on average.  When aparelhagens debut their new equipment at special parties as many as 8,000 people have been known to attend.

The gatekeepers of the tecnobrega are the studio and aparelhagem DJs. They determine which songs will be a hit by either distributing them on compilation albums for mass reproducers, or by playing them at live events and through the electronic media channels. Not all the deals are based on the exchange of monetary values, and sometimes the network of contacts and the capacity of access to certain people is sufficient consideration.

It is important to note the informality of this business model. The absence of written contracts and the sale of mass reproduced copies by street vendors (approved by artists but in fact illegal) prove that the tecnobrega is a model based upon norms rather than law. The lack of a strong copyright culture, combined with the fact that the parties themselves foment this structure of distribution, breeds an environment conducive to growth.

Tecnobrega artists don’t expect any revenues from copyright exploitation, believing that giving up control allows for the free circulation of their songs thereby reaching a broader audience. Piracy is not seen as a threat. In fact, artists support the practice because it can significantly increase the size of the audience for their concerts. Considering unauthorized distribution as a marketing tool, artists sell their albums and DVDs at concerts with a price sufficient to cover their costs of production, and the show’s revenue comes mainly from ticket sales. In a country where legal albums are sold at a price well above what most of the population can afford, the tecnobrega model guarantees broader access for the lower-income layers of society.

The book suggests that in some cases the application of copyright protection mechanisms might not be necessary to stimulate creation and sustainability within the creative industries. As well, copyright mechanisms may have a negative impact on the access to music, which for the authors is a ‘cultural’ good.  The tecnobrega model navigates a grey area within the margin of the established legal canon, but the case of Pará shows that when creators do not make an issue of their private intellectual property, a music economy may evolve just as well.

Lemos and Castro urge the public to consider that there are new effective ways of generating income for the stakeholders of ‘cultural’ industries. They make the case for easier copyright policies in Pará. In addition, the tecnobrega economy emphasizes the sale of ancillary services and strategies that leverage publicity to sell other goods. Similar examples of these so-called ‘open business models’ are found in the technology sector with open-source software, in the Nigerian Nollywood film industry, in Wikipedia–and, as well, in the much scrutinized initiative of Radiohead offering their album at whatever price a consumer might be willing to pay.

For the stakeholders in tecnobrega, the formality of the copyright system stands in the way of their trade in music.  Although Lemos and Castro warn that the replication of the model is unlikely on a bigger scale and in a different context, it remains an exemplar of a vibrant musical exchange in an emerging economy. It makes everyone interested in the future of music pause for thought, for where intellectual property law cannot be seen as the chaperone of trade, but its shackle, musicians and the public at large are victimized.

________

The English translation of the book is pending; the Portuguese version can be downloaded free at: http://portalliteral.terra.com.br/lancamentos/download/715_tecnobregamiolo.pdf.

________

by Luiz Augusto Buff

A Far Reaching Copyright Change in Brazil

Originally published in oct-10 issue of The Music Business Journal – Berklee College of Music

Last year, Brazil was rated the eleventh top country in recorded music sales. It was responsible for a significant rise in overall music sales, a claim that few countries, if any, can make. In addition, it is one of the fastest and largest growing emerging markets, classed under the BRICI umbrella of outstanding performers (Brazil, Russia, India, China, and Indonesia). It is the most populated country in Latin America, and in this regard dwarfs Mexico, its nearest rival. The future looks bright for Brazil, who will also host the FIFA World Cup in 2014 and the Olympics in 2016.

Recently, Brazil conducted a public consultation about a bill to reform the actual copyright law proposed by the Ministry of Culture (MOC). The Ministry is working on a final report that should be sent to the new president elect on October 31 for analysis. The major role of the bill is to strengthen and balance author’s rights, along with a constitutional guarantee of free access to culture. In addition, the bill promises to make concession to modern forms of distribution. 

The current copyright collection and distribution system in Brazil is quite different from that of the US and other countries. It is administered by a central organization, theEscritório Central de Arrecadação e Distribuição(ECAD), which is responsible for collecting all royalties from performing, mechanical and neighboring rights and then distributing the proceeds to the relevant author societies. Those societies then distribute the royalties to their members. In the last couple of years the ECAD has shown a lack of transparency in the distribution of collections, leading the Legislative Assembly of Sao Paulo to open an inquiry. The investigation has revealed wrongdoings far beyond ECAD’s legal and statutory rights. 

To correct this, the reform of the copyright law aims to create the Instituto Brasileiro de Direito Autoral (IBDA) an organization controlled by the MOC that oversees the administration of copyright in Brazil and provides arbitration. Many entities have criticized that idea, claiming that it would be public interference in what is a strictly private commercial matter. In a recent press conference, the Brazilian Minister of Culture, Juca Ferreira, explained that this organization would be created to serve as an intermediary between artists, the collection societies, and all other parties by helping them litigate conflict and provide administrative support. The statement was meant to demystify the idea that the new IBDA would nationalize the collection of copyrights, which will continue in private hands. It is important to mention that all the top 20 music markets already have an equivalent administrative structure to manage their copyright collections. 

In order to give authors greater control of their work, the new text of the copyright law clarifies the licensing concept, allowing the exploitation and usage of the intellectual work without a total transmission of the rights. The publishing contracts will no longer be able to contain clauses alluding to a (voluntary) cession of rights. The proposal also foresees the revision and cancellation of unfair or abusive contracts. 

The concept of fair use will be incorporated in the law, guaranteeing the right of free access to culture and allowing the use of intellectual work for educational and didactical purposes. In the Academy, the need for authorization and prior payment would not be necessary since it does not involve economic exploitation of the activity. After the public consultation, however, it was necessity to revisit this statute, so that authors were better protected from the misuse of fair use. 

The new law will also allow someone that owns an album to make copies of it for private use without the need of authorization. That guaranties the interoperability of digital files. Therefore, to own a CD and transfer its music to an iPod will now be legal. In addition to that, depleted works could be reproduced without the need of authorization for non-commercial purposes. 

However, the rising of broadband services and mobile subscriptions increases the worry about illegal file sharing. This is a problem that affects almost all countries and it has been difficult to find a satisfactory solution in the new bill. A lobbyist group, the International Intellectual Property Alliance (IIPA), has criticized its file sharing and piracy provisions. The final text will likely address such misgivings. Moreover, at its final hearing the MOC attested that it would work to improve the concept of interactive access in conjunction with better distribution provisions, thereby allowing the development of new business models for the Internet. 

Another important change proposed regarding the music market is the criminalization of payola. To avoid unfair competition, the act of artificially forcing the playing of songs through payment or favors will be considered a “violation of the economic order and the right of free access to culture”.
An intractable amount of legal issues clutter the music business today all over the world. The bottom line is that all the interests of the music stakeholders must be taken into account and, to some extent, balanced. The questions raised in Brazil over the modernization of its existing copyright law could well be the new template used by younger nations as they adjust to shifts in the dissemination of content. 

By Luiz Augusto Buff

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