The right of reproduction and control over the acts of copy for private use of intellectual works

Abstract

This article examines the legal notion of reproduction and the grounds of the freedom to reproduce intellectual works, starting from the phenomenon of repetition and from the ability to create a copy identical to the original. It moves from the act of reproduction as a human action to the right of reproduction in copyright law, addressing the requirement of fixation in a material medium and the legal value of such fixation in the digital environment, where technical copying and volatile computer memory challenge the classical criteria. The study discusses the right to control acts of reproduction, the private copying regime in Portuguese and Brazilian law, the WIPO treaties and the three-step test. It argues that requiring the user to assess those criteria produces legal uncertainty, since the user cannot know, before copying, whether the act conflicts with the normal exploitation of the work.