Legal Protection of Podcasts in Brazil: Challenges and Solutions

The pandemic has directly impacted the way the public consumes content, especially in digital formats. A study from PwC Brazil titled “Global Entertainment & Media Outlook 2020-2024” shows that the entertainment industry has seen accelerated growth during this period, with several sectors undergoing a digital transformation.

The statistics point to increased consumption of audio and video streaming entertainment during quarantine and social distancing, also indicating that this consumption will continue rising until 2024. Research indicates that the Brazilian media and entertainment market is expected to grow at a rate of 2.47% per year, worth USD 38 billion by 2021. This outlook is no different in the podcast and audio streaming industry – an ever-growing number of companies are adapting to the audio market, harnessing its influence to reach their audiences through this format.

Audio content offers a series of benefits to consumers, who can access news, comedy, investigative series, reflections, meditation, historical facts, short stories and other topics all on-demand, allowing listeners to listen whenever and wherever they want. Consumers can also listen to audio content while carrying out other activities and are not limited by being tied to screens. Moreover, as the market is still relatively new – a study by Kantar IBOPE estimates that only 8% of Brazilians listen to podcasts – there is still a lot of room for expansion

Legal aspects applicable to podcasts

The growing importance of podcasts as an entertainment and information tool makes it increasingly pertinent that they are adequately protected in legal terms. Indeed, the rights of each individual involved in the creation of a podcast can only be protected through legal mechanisms that stimulate content creation and limit issues such as plagiarism.

So, what forms of legal protection apply to podcasts in Brazil? Podcasts are considered works under the terms of Section 7 of the Copyright Act (Law No. 9,610/1998 or CA), i.e., a creation of the human spirit, the result of intellectual effort, expressed by any means or via any supporting medium.

The CA provides an illustrative and extensive list of creations that can be considered works – as well as many others that cannot, such as ideas, mathematical concepts and laws. Podcasts fall under the provision of Section 7, item II: ‘lectures, speeches, sermons and other works of the same nature‘. Radio programs are also protected in the same manner.

Practically speaking, the CA protects podcasts by granting its authors moral and economic rights over their content. Importantly, unlike other intellectual property assets such as trademarks and patents, the legal protection attributed to the author’s work is established at the immediate moment of its creation, and as such, it is not necessary to register it before any official agency.

It is also important to draw attention to the fact that several parties are often involved in producing a podcast. This can include scriptwriters, the performers, voice actors and guests, as well as third parties responsible for music production, vignettes and other contributions in certain situations. That being said, the analysis of rights in relation to a particular podcast should be conducted according to the role played by each participant.

Moral and succession rights

In terms of moral rights, authors have the right to have their authorship recognized, modify their work as they see fit, prevent their content being published without consent, and ensure the integrity of their work is maintained (avoiding any use and circulation that could violate their reputation and image). These rights cannot be transferred or waived, invariably accompanying authors throughout their lives. In some cases, they can even be transmitted to successors.

On the other hand, economic rights regard the right to use, make available, and benefit from the podcast as desired. In contrast to moral rights, economic rights can be freely negotiated, licensed, and assigned to third parties. These rights remain valid until 70 years after the author’s death, counted as of January 1^st of the year following their death. After this period, the works become public domain and can be used, made available and exploited by anyone, as long as the paternity and integrity of the work are preserved.

In many cases, podcasts are coauthored (created by more than one podcaster, or by a podcaster and a guest, for example). In such a situation, it is important to emphasize that only those who effectively participated in creating the content can be considered coauthors, rather than those who merely assisted in its production by reviewing or updating the work. Where co-authorship exists, the CA determines that coauthors must exercise their rights by mutual agreement and that any controversy must be resolved by majority decision – thus, if a majority of coauthors are in opposition to a certain measure being taken in relation to the podcast, they may prevent it. Therefore, coauthors should take into consideration who they will work with during the development process, and any contracts between them should be clearly written.

The protection granted by the CA aims to foment artistic development and guarantee the author exclusive exploitation rights, as the person who invested time, money and effort to create something original. Once created, only a podcast’s author(s) can determine what may be done with it. This encourages authors to create new content while guaranteeing them the right to prevent misuse of their creations, whether to protect their reputations or maintain a competitive advantage and obtain the resulting revenues.

Third-party content rights in podcasts

In addition to proprietary content, it is common for podcasters to also make use of third-party content, which the CA also protects.

In this case, third-party content authors have the same moral and economic rights as the podcast authors discussed in the previous topic. As such, podcasters are required to receive authorization from third-party content authors to use their material in podcasts, even if only for one episode. Therefore, obtaining written authorization through a license agreement or a specific term of authorization signed by the author (or by the holder of such rights) is recommended.

An exception to this rule, however, concerns the insertion of short excerpts. Section 46, VIII, of the CA provides for such a situation, determining that ‘the reproduction, in any works, of short excerpts from pre-existing works, of any nature, or 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 interfere with the normal exploitation of the work reproduced, nor cause unjustified prejudice to the legitimate interests of the authors‘.

As the law does not strictly define the duration of a ‘short excerpt’, the use of third-party content without explicit authorization should be kept brief and should not characterize commercial or undue exploitation of the original work. The use of such short excerpts must always attribute due credit to the authors of the work (as this constitutes one of the author’s moral rights and is thus not subject to negotiation or alienation).

Podcast platform policies

Many podcasts are currently broadcast on streaming platforms, each of which has a specific policy for the treatment of copyrights. Thus, in order to understand exactly what duties and obligations

would exist in regard to third-party copyrights, podcasters should check platforms’ terms of use to evaluate how the issue is regulated in this specific environment.

For example, some platforms pass on copyright royalties directly to ECAD (Brazil’s national copyright collection agency), exempting podcasters from needing to transfer these fees themselves. In addition, some platforms make a catalog of licensed music available to podcasters, who can freely use it when developing their own content (according to the terms of use) without needing to make any copyright payments.

As well as being aware of the terms of these platforms, if podcasters choose to use music or any work involving third-party copyrights without the required authorization, they should note that copyright holders can (in theory) demand the termination of the use of their work, along with compensation for moral and material damage arising from such use. Furthermore, depending on the specific policies of the platform hosting the podcast, royalties may be redirected to the copyright holder, or the specific episode in question may be taken down.

In conclusion, podcast authors should ensure they remain aware of their own rights and the rights of third parties, aiming to protect the content they produce while respecting the limits and conditions regarding the work of others. In a growing market, such a cautious approach is recommended for avoiding future litigation and enabling podcasts to grow and develop securely.

For further information about legal protection for podcasts, please contact Mattos Filho’s Intellectual Property and Technology, Innovation & Digital Business practice areas.

*In collaboration with Vitória Moreira Alves.