The Superior Court of Justice (STJ) recently ruled that streaming is a form of "public exhibition" that can be reimbursed by ECAD - Central Copyright Collection Office.

Before this position by the STJ, agreements to provide streaming audio content were signed only between the recorder owning the rights to commercial use, the performer and/or the author of the work, the publisher and/or recorder, together with the company providing the streaming service.

Based on these decisions, in addition to this remuneration, ECAD is also an active subject for the collection of amounts due for public performance of audio recordings and should pass them on to the copyright holders. In relation to this topic, it is necessary to analyze the legal framework to clarify three aspects: i) the criterion for the collection by ECAD; ii) the jurisdiction of ECAD; and iii) the STJ's interpretation that streaming is a mode of commercial use.

Article 99 of Federal Law No. 9,610/98 (Copyright Law) creates ECAD, a private, non-profit entity that centralizes, optimizes, and supervises the collection of copyrights related to public musical performances, and authorizes the agency to collect and distribute copyright funds to performers and composers of works in public performances.

Parallel to ECAD, the holders of these rights, musicians, performers, and composers, form collective copyright management associations, such as ABRAMUS (Brazilian Association of Musicians and Performers), AMAR (Association of Musicians, Arrangers, and Regents), and ASSIM (Association of Performers and Musicians). These associations represent the interests of authors and performers, and in turn collectively charge copyrights and also assist in the distribution to artists of the funds collected by ECAD.

This is a different scenario from the contractual form by which, for example, an interpreter, composer, or producer assigns his copyrights to a given work contractually without the need for a collective management association. One can draw a parallel here between a sale of CDs and copyrights on the exhibition of works in a bar. The first involves a contractual agreement for the remuneration of copyright (for example, record company and artist enter into an agreement to remunerate the distribution of sales revenue from CDs), while in the other there is a charge for the public performance of the work (playing the music in a certain place where the public gathers). Both involve copyright of the artists. The criteria, however, are different: in one case, there is acquisition of a product, in which the work of the author is saved; in the other, the work is performed in a public place, the classic example of a public exhibition.

In the distinction between these two examples, it is necessary to define the term "public exhibition" and see whether service via streaming fits within it.

By offering the content online, would the streaming service be: i) making the work available to be accessed and used by the public or ii) publicly exhibiting that work? The STJ understood that the second scenario applies for all forms of streaming (which can currently be done via simulcasting, simultaneous transmission of certain content through different communication channels, and webcasting, which is the transmission of content by the Internet provider, with possibility, or not, for the user to pause the exhibition).

For the STJ, the internet is a place where the public gathers as it makes content available to a broad audience. Thus, public exhibition is the result of the provider's act of making the work available to all, regardless of how it is used by the recipient. With this broad and general concept, services like Netflix and Spotify would be public exhibitions via the internet at a site frequented by the general public. Even though it is a company that does not provide phonographic/audio recording content in Brazil, Netflix would be subject to the copyright charges for providing audiovisual content that uses audio recordings. ECAD already charges television channels under this system, for example.

Our understanding of the issue is the opposite: streaming is a technology, not a mode of commercial use. And, as a technology, it enables various forms of commercial use. The STJ's majority understanding does not cover these various forms of use, which must be analyzed individually as to the possibility, or lack thereof, of collecting via ECAD.

Providing access does not necessarily mean public exhibition, but rather placing a work at the disposal of the public, like a CD on the store shelf. If the person who uses the streaming wants to publicly exhibit this content, he is responsible for the distribution of copyright by ECAD. That is, the criterion for public exhibition does not apply in a general and unrestricted manner to streaming services.

In this regard, a caveat should be made regarding online radio services and other streaming simulcasting (mode of transmission of live content, analogous to radios). In the case of these services, the distribution to ECAD should apply, since there is transmission of a given signal without any user interaction to select which content to listen to.

The function of the collection office (ECAD) and collective copyright management entities is to facilitate and maximize the artists' copyright collection, especially in difficult situations such as bars, gyms, hotels, cinemas, and hospitals. In the internet environment and streaming services, data collection with respect to visitor numbers and consumers is much more accurate. Not to mention that there is often a structured contractual arrangement between artists and the service provider.

In addition, there are currently several varieties of streaming services: online radios (pure simulcasting), streaming services with download capabilities, services without download capabilities, content platforms in which the author himself places his content online, live and recorded (YouTube, SoundCloud, Vimeo, DailyMotion, Facebook, Instagram, and many others). Would charging via ECAD apply to all of them? No, but the decision by the STJ, which was general and broad, puts all these channels into one and the same group.

Here we are not trying to argue that copyrights and their remuneration should not be respected - quite the contrary! What we are arguing is that charging via ECAD, on the legal basis of public exhibition, does not apply unrestrictedly to streaming services.

In services that only function as a means of making the content available by the author, such as YouTube, for example, it would not be possible to charge these platforms via ECAD because the person that owns the content is the author himself. Once again, the STJ did not take this peculiarity into account.

Recent decisions set a dangerous precedent for many content platforms, even if free, to be subject to payment of amounts to ECAD due to their allowing users to use their space.

We must wait for the case to unfold, because the STJ admitted an Extraordinary Appeal in Special Appeal No. 1.559.264-RJ, which means that the matter will be discussed again in the Federal Supreme Court (STF). It will now be up to the STF to rule on whether streaming is a technology, with different business models that may not always qualify as a public exhibition.