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What is

commons?
Copyright is a prominent subject being debated across the globe. If, in the past,

Sérgio Branco
Copyright only mattered for those who published books, recorded songs or made
movies, today Copyright is related to all Internet users. After all, the latest techno-
logical development has allowed cultural goods to be created and accessed, every
day, in the digital era.

However, the Brazilian Copyright Law is not suitable to contemporary practices.

This is the reason why innovative initiatives emerging in accordance to the law and
whose purpose is to bring the artist closer to the public are gaining momentum.
This book is about one of these initiatives: the Creative Commons licenses.

Through Creative Commons licenses, authors can communicate to the public how What is
their work can be used. Through a variety of six licenses (which allows from simple

commons?
copies to commercial exploitation, depending on the author‘s choice), the licensed
works can foster education, encourage the creation of derivative work and allow
collaborative projects. All of that, based on the author´s wishes and aimed at
promoting a more creative world.

N E W C O P Y R I G H T M O D E L S I N A M O R E C R E AT I V E W O R L D
Sérgio Branco has PhD and MsC in Civil
Law at the University of the State of Rio de
Janeiro (UERJ). He is the director at Institute
for Technology and Society of Rio de Janeiro
Sérgio Branco
What is
(ITS) and author of the books: “Copyright
Law at the Internet and the Use of Other
People’s Works” and “The Public Domain
in Brazilian Copyright Law” (this last book
licensed as public domain).

Walter Britto is an academic in Law at the

Getúlio Vargas’ Foundation (FGV) and
worked on the Creative Common´s project
at Getulio Vargas Foundation.
 Sérgio Branco and Walter Britto

WHAT IS CREATIVE COMMONS?

New copyright models in a more creative world.

Translation: Maurício Brito de Carvalho

You are free to:
• Share - Copy, distribute and send this work.
• Remix - Create derivative works.

Under the following conditions:

• Attribution - You should credit this work in the way specified by
the author or licensor (but not in a way that suggests they endorse
you or the way you use the work).
• Non-commercial use - You mustn’t use this work for commercial
purposes.
• Sharing under the same license - If you alter, transform or
create upon this work, you may only distribute the resulting work
under the same license, or under a similar license to this one.

The following points should be clear:

• Waiver - Any of the above conditions can be waived if you have
permission from the holder of the copyright.
• Public Domain - Where the work or any of its elements is in
the public domain under the applicable law, this condition is not,
in any way, affected by the license.
• Other rights - The following rights are not, in any way, affected
by the license:
• Limitations and exceptions to the author’s copyrights or to
any applicable free uses;
• The author’s moral rights;
• Rights that other people may have over the work or over
the use of the work, such as image or privacy rights.

• Warning – For any reuse or distribution, you should make the

terms of the license of this work clear to third parties. The best way
to do this is through a link to this page.
 CONTENTS

Preface................................................................................5
Introduction......................................................................14
Chapter 1
Why create a public license? ............................................18
1. Access to a more creative world ....................................18
2. The Brazilian copyright law...........................................26
3. When our neighbor’s grass is not greener than ours......40
4. A simple idea that solves a complex problem..................49

Chapter 2
How do Creative Commons licenses work? .....................57
1. What is the Creative Commons project? ......................57
2. Copyright contracts .....................................................73
3. The various types of licenses ........................................79
4.The adaptation of the licenses to the Brazilian legislation .87

Chapter 3
What are Creative Commons licenses for? ......................125
1. Millions of licensed works .........................................125
2.Where can works under Creative Commons licenses
be found?.......................................................................150
 Sérgio Branco and Walter Britto

PREFACE

RONALDO LEMOS1

In my lectures throughout Brazil, and even abroad, I was

always asked whether there was a book in Portuguese
dealing specifically with Creative Commons. The answer
to that question is now yes. Before this book, most of the
information about Creative Commons was on the Internet,
spread over blogs, websites, articles and YouTube videos. The
book you have in your hands is the product of the team of the
Creative Commons project leads in Brazil. Brazil has been one
of the key countries to adopt Creative Commons, and one in
which the project has become widely discussed by the public
sphere at large.
By way of example, Creative Commons has also been
discussed in a vast academic production which includes books
like Jangada Digital (Digital Raft), by Eliane Costa, the books
1
Ronaldo Lemos is a lawyer, founder and one of the directors of the Institute for
Technology & Society of Rio de Janeiro (ITSrio.org). He is a non-resident visiting
scholar with the MIT Media Lab, and its liaison officer for Brazil. He has a master
in laws degree from Harvard University, and a doctor in laws degree from the
University of Sao Paulo, and has been a visiting professor and scholar at Princeton
University and Oxford University. He is one of the architects of the “Marco Civil
da Internet”, a bill of rights for the Internet passed into law in Brazil in April 2014
protecting freedom of expression and privacy online, as well as network neutrality.
He writes weekly for Folha de Sao Paulo, a major national newspaper in Brazil. He
is a board member of various organizations, including the Mozilla Foundation and
AccessNow, and was appointed in 2015 a “Young Global Leader” by the World
Economic Forum. He was Creative Commons’ first project lead in Brazil.

5
 What is Creative Commons?

of the author of this preface, and numerous theses and doctoral

dissertations that have studied the licenses.
Despite this wide range of information sources, not a
single book had been published in Portuguese, reflecting the
dilemmas that emerge from the day-to-day application and
debates of the licenses. In that sense, in spite of the fact that
this book has in mind the Brazilian context, everything you
will find here can be applied in outher countries as well. Before
the authors of this book, Sergio Branco and Walter Britto
take the floor, this introduction is going to briefly present the
history of Creative Commons in Brazil, it been organized in
the country.
The Creative Commons project is co-managed in Brazil by
the ITS - Institute for Technology and Society (ITS-Rio) and
the Fundação Getulio Vargas. The project has been developed
in Brazil since 2003, being coordinated by the author of the
current introduction in partnership with other members of
ITS and FGV. Below is a brief history of the project, as well as
an account of its most important recent developments.
Brazil was the third country in the world to join the
Creative Commons project, soon after Japan and Finland.
The reasons why we were early adopters are due to academic
and institutional reasons.
The academic opportunity presented itself while I was
studying in the United States in 2001-02. I went to work at the
Berkman Center for Internet & Society at Harvard University,
and established a collaboration with the institution, where one
of the founders of the Creative Commons project, Lawrence
Lessig, had worked until then; I also met other professors of
‘Internet Law’, who were then already poring over the issue

6
 Sérgio Branco and Walter Britto

of copyright in the digital age; among these were Jonathan

Zittrain and Charles Nesson, and Lessig Lessig (a Creative
Commons founder) himself.
As for the institutional reasons, Brazil has been in the past
15 years engaging in a profound debate about the intersection
of law and technology as one of its main public policy topics.
In this sense, one of the first activities that I was involved
when back in Brazil was conducting a seminar in partnership
with Harvard’s Berkman Center. The seminar, called I-Law:
Internet Law Program2, took place in March 2003 and brought
Lawrence Lessig to Brazil, among other prominent professors
in the field of law & technology.
Curiously, two important events had just taken place then.
Firstly, the Creative Commons project had been created in the
Unites States. Secondly, President Luiz Inácio Lula da Silva
had been recently elected in Brazil, and appointed Gilberto Gil
as Minister of Culture, a widely known singer and musician,
well-known for his deep interest in the idea of “digital culture”.
Thus, at the 2003 seminar, organized in partnership with the
Harvard Berkman Center, the foundations were laid for the
launching of the Creative Commons project in Brazil.
Soon afterwards, Creative Commons signed a Memoran-
dum of Understanding appointing me as its project lead in
Brazil. At the same time, Minister Gilberto Gil decided to
support the initiative as a Minister of Culture. He agreed to
participate in the launching of Creative Commons, both as
an artist – licensing musical works through the project – and
institutionally, as the Minister of Culture, stimulating discus-
sion on the issue of intellectual property and copyright.

2
Available at <http://cyber.law.harvard.edu/ilaw/brazil03/brasil.html>.

7
 What is Creative Commons?

It was the beginning of all the hard work involved in

adapting the Creative Commons licenses to Brazilian law.
This work, which lasted for about one year (2003-2004), had
a broad public participation in discussions held through the
mailing-list CC-BR3, created to promote legal debate about
the legal as aspects of the licenses. The adaptation process
of the licenses to the Brazilian context also had the support
of many lawyers in the area of intellectual property, with
rounds of discussion promoted by the Associação Brasileira
de Propriedade Intelectual (ABPI - Brazilian Association of
Intellectual Property).
After this major effort to “translate” the licenses into the
Brazilian jurisdiction, the Creative Commons licenses were
finally launched in Portuguese. We made sure that they
were fully compatible with the Brazilian copyright law (of
European - or “droit d´auteur” descent), having fulfilled all
conditions of applicability and validity within the law of the
country. As a result, the Creative Commons project was ready
to be launched publicly.
The launching event, now widely seen as a historical
landmark in the debate about technology and culture in
Brazil, happened at the 5th International Free Software
Forum in Porto Alegre, in June 2004, and was attended not
only by the then Minister of Culture, Gilberto Gil, but also by
Lawrence Lessig, William Fisher (professor at Harvard Law),
John Maddog Hall, Luis Nassif, Marcelo Tas, Claudio Prado
and the author of this text, among others. The launching was
portrayed in a documentary4 directed by Daniel Passman,
available online, which illustrates the enthusiasm that marked
3
Available at http://creativecommons.org/international/br/> .
4
Available at <http://www.archive.org/details CreativeCommonsCreativeCommonsBrasil>.

8
 Sérgio Branco and Walter Britto

the Brazilian event (featuring an energetic live presentation by

the musician and Minister Gilberto Gil).
Since then, the Creative Commons project has been steadily
expanding in the country, in various areas. From the very
start, the project was adopted enthusiastically by the musical
community, encouraged by the example of Minister Gilberto
Gil. Several artists were pioneer supporters of the licenses, like
the rapper Bnegão and the band Mombojó. Today there is
a long list of musicians who have used Creative Commons
licenses in their work, from Lucas Santanna up to artists like
DJ Dolores or the Projeto Axial, to name just a few.
Likewise, the Creative Commons project has been
increasingly used within the government, in that it became
an important option to promote access to culture, education
and broad dissemination of public information. For instance,
Radiobrás, the communication authority of the federal
government, together with the Ministries of Culture and
Education, pioneered the use of Creative Commons licenses
at government level, through the portal www.dominiopublico.
gov.br. More recently, the use of licenses has expanded, so
that the official blog of the Brazilian Presidency is now also
licensed through Creative Commons5. It is also used in
various ministries, as well as on government sites ranging from
the State of Rio de Janeiro to the São Paulo municipality. All
the educational materials produced for the public schools of
the São Paulo municipality have been licensed under Creative
Commons. And the list continues to grow, with a very strong
community support “Open Educational Resources” (OERs)
growing steadily in Brazil.
5
Available at <http://blog.planalto.gov.br/>

9
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