A utilização do fair use como ponto de equilíbrio entre o direito de acesso à cultura e o direito de proteção das obras autorais.

Abstract

The present work deals with copyright, specifically the Brazilian copyright legislation (Law n. º 9.610/1998) and its limitations facing the technological innovations that emerged with the arrival of the 21st Century. The analysis takes place, mainly, in relation to the effects caused by the arrival and development of the Internet and, consequently, the insertion of people in a new world: "the digital world". The repercussions arising from this event deserve to be highlighted, since they amplified infringements related to copyright, involving, in particular, copying, use and sharing without authorization. The current Brazilian law, in turn, provides for exceptions of use, however very generic, to the point of being insufficient to guarantee the "fair use" of works. In this way, many content creators, as well as simple users, have suffered over time with legal challenges, as a result of alleged "illegal" uses. In this scenario, the North American doctrine of Fair Use emerges as a propitious tool for finding a balance, primarily, between preserving the right of access to culture and protecting copyright holders. In view of this, the use of the Fair Use doctrine was conceived, together with the current Brazilian legislation or in isolation, as a solution to dissipate the currently existing contradictions, which, in a frequent way, cause difficulties in the legal interpretation of the magistrates when analyzing the most diverse concrete cases. Research on the subject led to several authors, court decisions and emblematic media cases, among which, after study and analysis, some were selected to compose the current work, so that it was possible to achieve the intended objective, that is that is, to identify whether Fair Use, as a doctrine of North American law, could be used in the Brazilian legal system, as a resolving method for demands related to the matter. As a result, it was concluded that the concept of "fair use" actually serves the purposes of Brazilian law, which is, nothing more than to resolve existing conflicts in the fairest possible way. In this sense, it was found that the Fair Use doctrine, given its broader and more open character, understands much better the cases that exist at the moment, involving copyright infringements, especially those concerning the unauthorized use of works, both by mere users and by content creators, the latter who tend to use third-party content in works created by themselves, that is, derivative works. Fair Use, therefore, brings the necessary balance to relations, allowing the fundamental principles and rights related to copyright to be respected. [resumo fornecido pelo autor]