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Arbitragem e mediação na gestão coletiva de direitos autorais


7/15/2015 9:00 PM Demarest News


Arbitration and mediation in the collective management of copyrights

The Normative Ruling n. 4 of July 7th was published last Wednesday (July 8th, 2015). Such ruling brings into force the Mediation and Arbitration's Rules in the scope of the Ministry of Culture.
In order to understand what this means, a previous clarification is needed. In 2013, the Law n. 12.853/2013 changed some articles of the Law n. 9.610/1988 (Copyright Law) in order to recognize the public interest of the Associations of Copyright Holders, which have extraordinary standing to defend the rights and interests of its affiliated copyright holders, if properly licensed before the Federal Public Administration (Ministry of Culture or MinC).
In addition to that, this Law updated the regulation in regard to the interaction of these associations with their respective Central Office for Collection (Brazilian Central Collection and Distribution Agency - ECAD can be mentioned as an example concerning the collection of public performance rights of musical works), and established the rights and obligations of associations and collecting agents in the scope of their activities.
One of the major and most interesting innovations introduced by the Law n. 12.853/2013, in the steps of the Public Policy of Suitable Treatment for Conflicts (Resolution n. 125/2010 of the National Council of Justice), is the express authorization for the Federal Public Administration to act in the conflict resolution between users and copyright holders, representatives or even between holders and its associations, through mediation and arbitration - two extrajudicial methods of conflict resolution.
Obviously, only property rights (such as default of payment, collection criteria, forms of repertory offering, collection values, distribution values and criteria for such) can be matters of extrajudicial methods of conflict resolution. Furthermore, it was maintained, as it should be, the role of the state courts and the Administrative Council of Economic Defense (CADE) whenever appropriate.
In this scenario, the Ministry of Culture edited and published the Normative Ruling n. 4 mentioned above, in order to regulate the dispute resolution in the scope of the Federal Public Administration and, also, in order to authorize the Committee of Intellectual Rights (DDI) of the Ministry of Culture to act as a mediator or as an administration center of mediation and arbitration proceedings, when authorized by the parties through express agreement upon an arbitration clause or commitment subsequently signed.
Furthermore, the Normative Ruling in question introduced in its Exhibit I the Mediation and Arbitration's Rules within DDI/MinC, which presents the rules of procedure in accordance with the national and international regulations of the private chambers of mediation and arbitration worldwide.
Among the interesting possibilities brought by the Rules, we can point out:
1 - Noticing the termination of the mediation, the mediator may suggest to the parties other dispute resolution methods, such as the expert report (expertise), the conversion of mediation in arbitration with one arbitrator, or even arbitration in general, under terms agreed by the parties.
2 - The absolute confidentiality of the mediation proceedings, whose records, unless otherwise agreed by the parties, will be unused, and whose issues discussed may not be used in a judicial and/or a subsequent arbitration procedure.
3 - The performance of DDI/MinC as an appointing authority of arbitrators in case of failure to perform deadlines by the parties or by the arbitrators appointed by them.
4 - The possibility of recognition of confidentiality, by the Arbitral Tribunal, even if there is no express agreement between the parties in the arbitration clause or settlement, with regards to (i) information in possession of only one of the parties, (ii) non-public or non-free access information, (iii) information regarding commercial, financial or industrial value, (iv) information considered confidential by the party that owns it; and also (v) information related to the evidence produced.
The Normative Ruling becomes effective on the date that it is published.
The Normative Ruling n. 4 of July 7th issued by the MinC is one more measure that privileges the Public Policy of Suitable Treatment for Conflicts, as well as the recent provisions introduced by the new Civil Code in respect to the legal framework of mediation and the amendment to the Arbitration Law. By enabling a likely more suitable, effective and faster dispute resolution, this rule should be fomented and celebrated.
For the complete text of the Ruling please access:
Demarest Advogados 
Marcelo Junqueira Inglez de Souza +55 11 3356-2177​
Rafael Villar Gagliardi​ ​+55 11 3356-1576
​Tatiana Campello +55 21 3723-9851
Camila Biral​ +55 11 3356-2178
​César Rossi Machado +55 11 3356-2196
​Julia Davet Pazos ​+55 11 3356-2283
​Talita Gonçalves Marchione ​​+55 11 3356-1961

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