A persistência dos usos patrimoniais da obra autoral integrada ao domínio público brasileiro à luz do direito concorrencial

Abstract

This paper aims to analyze the legislative approach to copyright in Brazil, through a historical perspective, focusing on the public domain, especially with regard to the Copyright Law, Law Nº 9610 of 1998, and the power of the State as a catalyst for the promotion of culture. The problem of this paper is the question of how the legal effects arising from the current Brazilian legal institute, the Public Domain, provide for the maintenance of the integrity of the work behind the protection of the author's work, in a way that regulates all the nuances of the work in a state of public domain and the reinsertion of works into the publishing market as a distance from access to culture and maintenance of this mercantile and patrimonial cycle. This paper is classified as a hypothetical-deductive research method, exploring through the formulation of the hypothesis, that is, since it will be subjected to analysis the specificity of the Public Domain in light of the guidelines of Law Nº. 9.610/98 (Copyright Law). Furthermore, a brief historical analysis was carried out on the emergence of copyright, mentioning how it is a type of intellectual property, going through the dual nature of copyright, the constitution of the author's right and the patrimonial right to the linked work. The guidelines arising from Law 9610 of 1998 regarding moral rights were then explored, as well as what would or would not be a work protected by it. Furthermore, the ultra-protective nature of this law is emphasized and how such a temporal limitation directly reflects economic interest, and the way it affects personal and cultural rights. Nevertheless, through the specialized doctrinal study of Law 9.610/1998 itself, it is possible to infer the importance of the public domain as a source of preservation of intellectual works, through the State, which has the role of fulfilling the integrity of the intellectual work by operating its caretaker function through the remunerated public domain.