APPEAL TO THE SUPERIOR COURT OF JUSTICE. INTELLECTUAL PROPERTY. COPYRIGHT. NEWS CLIPPING. CURTAILMENT OF DEFENSE. NOT PRESENT. USE OF NEWSPAPER ARTICLES AND COLUMNS. LACK OF AUTHORIZATION. ILLICIT. ARTICLES. 46, I, "A", AND VII OF THE COPYRIGHT ACT AND 10.1 OF THE BERNE CONVENTION. INAPPLICABILITY. THREE-STEP TEST. ECONOMIC ENJOYMENT. EXCLUSIVITY OF THE COPYRIGHT HOLDER. PROPERTY DAMAGE ESTABLISHED. MORAL DAMAGES. ILLEGITIMACY OF THE ASSIGNEE.
1. Writ sent on 4/12/2014. Appeal to the Superior Court of Justice filed on 5/3/2021. Proceedings concluded before the Rapporteur on 4/7/2022.
2.The purpose of the appeal is to define (i) whether there has been a curtailment of the defence, (ii) whether the defendant's activity, consisting of preparing and selling clippings of journalistic articles and columns published in newspapers edited by the appellant, without authorization or remuneration, violates copyright and (iii) whether, if such violation is recognized, the compensation claimed is appropriate.
3. It is settled in this Court that there is no curtailment of the defense when, in a reasoned manner, the judge resolves the disputed issue without producing the evidence requested by the party, because he considers the elements in the case file to be sufficient.
4. Authors have the exclusive right to use, publish or reproduce their works (art. 5, XXVII, of the CF/88).
5. The creation of the mind derived from journalistic activity is work protected by the Copyright Law and, as a result, the right of public use and economic exploitation belongs exclusively to their respective owners (arts. 28 and 29 of Act n. 9.610/98).
6. The production and commercialization of news clipping services is an activity that does not fall within the scope of the rules of items I, "a", and VII of article 46 of the Copyrights Act.
7. Limitations on the copyrights must pass the "Three-Step Test" before being applied to a specific case, due to Brazil's commitment as a signatory to the Berne Convention and the TRIPS Agreement. Doctrine.
8. According to the "Three-Step Test", the unauthorized reproduction of third-party works is only allowed when the following cumulative requirements are met: (i) in certain special cases; (ii) that do not conflict with the normal commercial exploitation of the work; and (iii) that do not unjustifiably harm the legitimate interests of the author.
9. The activity of news clippings carried out by the defendant conflicts with the normal commercial exploitation of the appellant's works, unjustifiably harming its legitimate economic interests.
10. Under art. 36 of Act n. 9.610/98, the economic use of writings published by the daily or periodical press constitutes a right belonging exclusively to the respective owner of the work.
11. The clipping service, in hypotheses like those, does not fall within the factual framework of the rule in art. 10.1 of the Berne Convention, since the appellant's journalistic articles are used as an input for the product marketed by the respondent, and not as mere quotations.
12. If it is proven that the defendant used commercially, without authorization, works whose economic enjoyment is reserved exclusively for the appellant, the appellant is entitled to compensation, by way of material damages, reflecting what it "actually lost" and what it "reasonably failed to profit" (art. 402 of CC/02), in an amount to be determined in enforcement stage.
13. Since the plaintiff is the contractor by assignment of the copyrights here discussed, he lacks legal standing to claim compensation for moral damages, due to the fact that the transfer of such rights, even if total, does not include those of a moral nature, under the terms of the rule expressed in art. 49, of the Copyrights Act.
14. Appeal partially upheld.