"DDiscussing art and culture is an arduous mission, even though the Brazilian Federal Constitution, enacted in 1988, has in its lines the provision that it is a guaranteed right", says the Arts Law Commission of the OAB-SP (Order of Lawyers of Brazil Section São Paulo) in the introduction of his new book The Law of Arts, a legal view of culture, available online for free.
In the very first chapter of eBook (only in Dutch at the moment), the president of the commission, Cindia Regina Moraca, observes: “Prejudice, conservatism and the lack of knowledge of the importance of culture and art as agents of education are the main reasons that have been decimating Brazilian cultural history and, mainly, access to public policies to promote and encourage culture and the arts”. It is with the aim of combating disinformation and with the intention of expanding access to all types of knowledge that originates in culture and the arts that the proposal of this book arises. Before that, Cindia says that the commission meets to discuss current issues, promote meetings with groups, bodies and entities that work in this sector, in order to collaborate with the understanding of the role of advocacy in relationships permeated by culture and arts.
Following the president's introduction, the collection of articles chronologically resumes the political reopening and the Federal Constitution of 1988. About it, Rodrigo Guimarães Buchiniani highlights the innovation in establishing the duty to guarantee the full exercise by artists and the public of the cultural rights of access to sources of culture, encouragement, appreciation and dissemination of the manifestations of different groups participating in the national civilizing process. “The normative text, when conceptualizing the Brazilian cultural heritage, clarifies that it can be constituted of goods of a material and immaterial nature, provided that they are listed by a specific procedure to be recognized as bearers of reference to identity, action, memory, forms of expression. , to the ways of creating, doing and living and to artistic creations”, he points out.
Further on, in chapter 4 of the book, Iago Camilo Fernandes de Sousa unfolds precisely on the topic of cultural heritage, providing a brief explanation of the relationship between its protection and international law. Iago points out that in the first article of the United Nations Charter, among the international problems that deserve attention and international cooperation, those of a cultural nature, along with economic, social and humanitarian ones, are listed. “Culture as a value gains such relevance that one of the entity's objectives is for States and other bodies to cooperate to deal with cultural issues,” he writes. “And in this sense, one of the paths is the protection of heritage as a corollary of development, emancipation and preservation of people's identity”, adds Iago. In the same chapter, the lawyer explains UNESCO's role in this area and lists some relevant events over the years that helped to recognize the seriousness of the cultural preservation. Among them the Convention for the Safeguarding of Intangible Cultural Heritage, adopted at the UNESCO General Conference of 2003.
“The approval of this Convention took into account the effects of the process of globalization and social transformation and the consequent need to create conditions, through commitments assumed between States, to safeguard the intangible heritage as a universal will”. Recognizing, for example, that communities, groups and individuals play an important role in producing, safeguarding, and maintaining this heritage.
The following chapter complements and expands on the discussion of intangible heritage started in the previous section of the book. In it, Marjorie Prado Junqueira de Faria emphasizes that there are instruments for safeguarding intangible cultural heritage, laws that protect them, and asks: “What is missing to avoid the aesthetics of erasure in the territory?”. She emphasizes the urgency of the debate on legal procedural instruments to prevent the disappearance of traditional cultural manifestations "in order to avoid harmful acts to this generation and the next". Memory is identity in action, as she points out.
Turning to the commercial field, Tais Capito and Luiz Guilherme Veiga Valente approach intellectual property law and the approximation between the world of art and commercial brands, from which they warn that certain precautions must be observed from a legal point of view. “Legally, trademarks and artistic works (whether paintings, sculptures, books or films) are protected by different types of Intellectual Property: Trademark Law and Copyright, respectively. Each regime has its own rules, scopes and limitations,” they say. In this way, the article aims to inform both companies and artists about the rights they have over their respective brands and works, as well as precautions to avoid violations of the rights of third parties.
“Considering the almost infinite possibility of reproducing copies of the same work (especially in the digital scenario), Copyright is a mechanism to attribute to the author a form of control, both from an economic point of view, as well as in terms of content, over their creation”, they explain. And they call attention to article 24 of the Copyright Law: “In this sense, it assures the creator of the prerogatives of having the authorship attributed (or omitted, if you wish) to the work; to oppose the attribution of authorship to third parties other than the creator; to maintain the integrity of creation; to modify it; to preserve its originality, to take it out of circulation and to have access to a unique and rare copy”.
When considering cultural rights within the market, the e-book does not fail to address the relationship between artists and galleries, the eviction and risks arising from informality in this association. In chapter 6, Gustavo do Abiahy Carneiro da Cunha Guerra indicates that: “When there is the initiative to formalize the relationship, it usually comes from the gallery owner, which is not at all surprising, as this is the agent used to the business environment, and not the artist. But for the same reason, less organized gallery owners tend to maintain relationships very informally and even non-transparently with some of their artists. In these cases, the greater the informality the less famous the artist in question.”
For Gustavo, the artist's lack of habituation in the business environment may come from a certain pejorative image of the artist concerned with the commercialization or with the profits of his works. “There seems to be much more value in that art that is not for profit or commercial, as if it were a more authentic or purer art, perhaps on the assumption that it is an artistic expression free from influences.” The author points out that although the artistic work is not intended to be profitable, avoiding dialogue turns the commercial aspect of the works into a great taboo. For him, it is essential that the nature of the relationship between artist and gallery owner be delimited: “Will the gallery owner be responsible for any of the artist's costs? If not for materials such as paints and canvas, at least for transporting the works? Who is responsible for taking out insurance? Who will enter them in awards, contests, exhibitions and public notices? If the work is successful in any of these initiatives, how will the results be divided?”. These issues may seem small at the beginning of any relationship, but their importance shows up as time goes on and the partnership develops, he says.
Still in The Law of Arts, a legal view of culture, we talk about authors' rights when there are adaptations from literature to audiovisual. The article that closes the collection of the OAB, written by Guilherme Genestreti, addresses the regulation of streaming, which also takes into account the preservation of cultural venues such as street cinemas and the need or not of a quota for national productions on the platforms of these services. “If other sectors of the Brazilian economy, such as food and automobiles, find protection in the face of competition with the foreign equivalent, why would the audiovisual sector be left out, which is an industry that stamps the Brazilian identity on the screen?”, asks the author.