Wednesday, 25 May 2011

TV and Radio signal in Hotel rooms under Brazilian Copyright

Hotels that have radios, televisions or similar devices installed in their rooms should pay royalties to the Central Bureau of Collection and Distribution (ECAD).

A hotel in Porto Alegre brought an action for declaration of non-existence of debt against ECAD after refusing to pay bills issued by the entity. The 6th Civil Court of Porto Alegre denied the request, considering that according to Article 29 of Law No 9610/1998, installing alarm clock radio and television in hotel rooms are subject to the payment of royalties.

The hotel appealed and the Court of Rio Grande do Sul (TJRS) found that because the transmission did not occur in areas of the hotel but the rooms, ECAD could not claim any payment. The Court held that the establishment would not even know which stations or songs were tuned.

On appeal to the Superior Tribunal de Justica (STJ), ECAD argued that the hotel rooms were often places of public nature and that payment for the copyright would not be jeopardized by the fact that the broadcasting devices remain available to the client so that they can turn it on or off. It was also noted that the existence of radio and TV helps hotels to attract customers and improve the classification of the establishment (obtaining stars). In turn, the hotel claimed that the hotel rooms are not considered as sites of ‘public’ nature but for the exclusive use of guests – ‘private’ nature.

In its vote, the minister Sydney Benet, rapporteur of the case, said that Law No 9610/98 changed the understanding of charges made by ECAD. Before, the law oversees the rule that "the use of radio receivers inside hotel rooms did not involve public performance of works, but privately run," which made improper payments to ECAD (Law 5988/1973).

From the new law, the STJ addressed that hotels are often regarded as places of the ‘public’. Therefore, the executions of works featured in such places are regarded as public performance.

The minister also noted that although Article 23 of Law No 11.771/2008 considers the rooms as individual units of frequency, the analysis of this case is limited to the legislation prior to this law. With this reasoning, the court held the hotel to pay ECAD.

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