Análise regulatória das limitações aos direitos autorais no cinema brasileiro

Resumo

This study investigates the legal uncertainty and decisional instability faced by the Brazilian film industry regarding the application of copyright limitations, particularly Article 46, VIII, of Law No. 9.610/1998 (“Copyright Law” or “LDA”). The provision at issue, which allows the reproduction of excerpts of preexisting works under certain conditions, employs broad and indeterminate legal concepts, such as “small excerpts” and “unjustified prejudice to the legitimate interests of the authors,” whose conceptual vagueness has generated academic debate and practical difficulties in its application. From the perspective of regulatory theory, the research problem consists of examining whether, and to what extent, the normative design of Article 46, VIII, of the LDA contributes to such legal uncertainty in the Brazilian film market. To this end, the theoretical framework is grounded in regulatory theory and in a functional understanding of copyright as a regulatory institution oriented toward the realization of constitutional purposes, particularly the balance between copyright protection, creative freedom, and access to culture. Furthermore, the provision is analyzed as part of a broader regulatory design that delegates significant interpretative discretion to the Judiciary. In this respect, the study aligns with the research line “Regulatory Governance, Institutions, and Justice,” by examining judicial decision-making as a site of regulatory norm production within the economic and cultural spheres. The method adopted is descriptive-exploratory in nature, with a qualitative approach. The empirical core of the research consisted of a content analysis of ten appellate decisions rendered by the Courts of Justice of Rio de Janeiro and São Paulo, selected for their relevance to understanding the judicial use of the limitation in the audiovisual context. Accordingly, the investigation was structured around previously selected analytical dimensions and methodological indicators aimed at assessing the normative precision, the rule/standard structure, and the teleological congruence of the provision. The empirical findings demonstrate that, although there have been occasional efforts by the courts to bring rationality to the application of Article 46, VIII, significant argumentative dispersion persists: indeterminate concepts are rarely defined or concretized; interpretative criteria are poorly structured; minimally stable jurisprudential tests are lacking; and adherence to precedents capable of consolidating decision-making patterns remains low. Moreover, the teleological congruence of the limitation is applied inconsistently, oscillating between a rigid protection of copyright and the consideration of constitutional interests such as creative freedom and access to culture. The results indicate that the current design of Article 46, VIII, combined with the manner in which it has been judicially interpreted, directly contributes to the legal uncertainty faced by agents in the film industry, who must rely on case-by-case and largely unpredictable assessments to determine the viability of incidental or ancillary uses of protected works. Finally, the study highlights the need for normative and interpretative improvement – not in the sense of proposing a comprehensive legislative reform, but rather in guiding more homogeneous and functional decision-making and regulatory practices aligned with the constitutional purposes of intellectual property and the contemporary demands of audiovisual creation.

Ficha do documento

Tipo

Dissertação

Ano

2026

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/38482

Temas

DadosGovernança

Palavras-chave

Limitações aos direitos de autorMercado cinematográficoRegulaçãoDesenho normativo regulatórioCopyright limitationsFilm marketRegulationRegulatory designDireitoPropriedade intelectualDireitos autoraisCinema - BrasilProcesso decisório