Copying from an author is plagiarism; copying from many is research, once criticized the American chronicler and playwright Wilson Mizner. Stealing an idea is like stealing a good and the new Penal Code ( CP ), under discussion in the National Congress, should toughen punishments against copyright offenses , including creating a criminal offense for plagiarism Punishment.
Minister Gilson Dipp, chairman of the commission that prepared the proposal for the new code, stated that the objective is to prevent the misuse of another’s intellectual work to mislead third parties and cause damage. Copyright will be better protected with these new criminal types and with the new wording of what is currently in the current law, he assessed . The new type defines the offense as presenting, using or publicly claiming, as one’s own, the work or intellectual work of another, in whole or in part.
Currently, the legislation does not offer specific criteria to legally define plagiarism, and its characterization varies according to music, literature, scientific works, etc.
For example, the English playwright William Shakespeare was accused of having plagiarized Romeo and Juliet from another author. In fact, at the time, there would be five different versions of the drama, with minor changes and new characters being common practice at the time, he said. Another classic writer, the Spaniard Miguel de Cervantes, author of Don Quixote de La Mancha, even wrote to the King of Spain against the copies and versions that his work suffered.
According to the professor, if Shakespeare’s case took place these days, it would probably end up in court.
The Superior Court of Justice (STJ) has dealt with this issue in some judgments involving well-known artistic personalities. This is the case of Agravo de Instrumento (Ag) 503,774, in which the conviction of Roberto Carlos and Erasmo Carlos for plagiarism of the work of the composer Sebastião Braga was maintained. The justice of Rio de Janeiro considered that the song O Careta, supposedly composed by the Jovem Guarda duo, would repeat the first ten bars of the song Loucura de Amor, by Braga, evidencing the copy. The decision was upheld in 2003 by Minister Ruy Rosado, then a member of the Fourth Panel of the STJ.
The Special Appeal (REsp) 732,482, on the other hand, concerned the process in which the singer from Ceará Fagner was sentenced to indemnify the children of composer Hekel Tavares, creator of the song Você. Fagner adapted the work, calling it Penas do Tié, but did not cite the authorship. In the appeal to the STJ, judged in 2006, the singer’s defense stated that there was no longer any possibility of prosecuting him, as the deadline for filing the action was already expired, and claimed that the plagiarism of the song was not proven.
However, the Fourth Panel held, in a unanimous decision, that the Court of Justice of Rio de Janeiro (TJRJ), which examined the evidence in the case, dealt exhaustively with the issue of authorship, noting the similarity of the lyrics and musicality, and Fagner must indemnify the author’s heirs. The Panel only determined that the TJRJ should define the parameters of the indemnity.
Companies also dispute the exclusivity of television productions, as in the dispute between TV Globo, holder of the rights to Big Brother Brasil, and the Brazilian Television System (SBT), responsible for the program Casa dos Artistas. Globo accused SBT of plagiarism, claiming that it had the exclusivity in Brazil of the format of the program created by the group Edemol Entertainment International.
In the first instance, it obtained a preliminary injunction to suspend the transmission of the second season of Casa dos Artistas, but SBT appealed and the decision was overturned. In 2002, Globo appealed to the STJ with a precautionary measure (MC 4,592) to try to avoid the presentation.
However, Justice Nancy Andrighi, rapporteur of the case, considered that the verification of the occurrence of plagiarism and breach of exclusivity contract collide with Precedents 5 and 7 of the STJ, which prevent the interpretation of contract clause and the reanalysis of evidence already dealt with. by the first and second instances. There would still be no new facts that would justify the interruption of the program, which had already been on the air for two months.
In the advertising world there are several cases where the similarity between ads is great, especially if the product is the same. However, in the case of REsp 655.035 , the Court considered that there was a clear appropriation of the idea by the Kaiser brewery and its advertising agency. In this case, in 1999, the company launched the Kaiser campaign, A Cerveja Nota 10, with the number formed by the bottle and the cap.
However, a very similar idea was elaborated and registered at the INPI, three years earlier, by a publicist from Paraná, who received nothing from the agency or Kaiser for his creation. In the first instance, the companies were ordered to pay compensation for the plagiarism of the unpublished work, but the Court of Justice of Paraná changed the sentence because it understood that there was no proof of knowledge of the existence of the previous work and, therefore, of the plagiarism.
The publicist from Paraná turned to SJT. The case was judged in 2007. Minister Humberto Gomes de Barros (deceased recently), rapporteur of the case, understood that, even if it was a mere creative coincidence, the company, after being informed of the existence of a previously registered campaign, should have contacted with the advertiser to obtain their authorization. For the rapporteur, the company took the risk of creating an identical campaign if it already knew of the existence of a campaign with the same theme. The compensation was set at R$ 38 thousand.
The director of the Brazilian Bar Association Section Ceará (OAB-CE) and president of the Cultural Rights Commission of the entity, Ricardo Bacelar Paiva, highlights that there are still many issues related to plagiarism not dealt with in court. He assesses that the STJ has played an important role in establishing jurisprudence on the matter. He cites the case of REsp 351,358 , judged in 2002, in which it was discussed whether there was plagiarism in the copy of an initial petition.
The issue was analyzed under Law 5,988 /73. This law defined as intellectual work, in addition to books etc., also “other writings. The rapporteur of the process, Minister Ruy Rosado, now retired, considered that plagiarism would occur in literary, artistic or scientific texts, with a clearly innovative character. judicial would be a technical and utilitarian text, restricting the possibility of recognizing literary creation.
The minister highlighted that the rule of the old law only protected judicial opinions (and in them including the initial petition and other reasoning), “provided that, by the selection and organization criteria, they constitute an intellectual creation”. For the minister, there was, therefore, a condition. The existence of the text is not enough, it is essential that it constitutes a literary work, he said.
Ricardo Bacelar recently sent a proposal to combat plagiarism to the national OAB, with guidelines that have already been adopted by several institutions, such as the Coordination for the Improvement of Higher Education Personnel (Capes). He claims that there is an underground trade on the internet, which deals in school and university work.
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