The pledge in Luso-Brazilian copyright law

Abstract

This study examines, from a comparative standpoint, whether copyright may be given as security by way of pledge under Portuguese and Brazilian law. It draws on the distinction between the moral and the economic prerogatives of copyright to argue that only the economic content, being transferable and susceptible of valuation, may be pledged. It surveys the regime of personal and real securities, both typical and atypical, and contrasts the Portuguese Code of Copyright and Related Rights and the Portuguese Civil Code, which expressly provide for the pledge of rights and for credit privileges, with the Brazilian Copyright Act, silent on securities, and the Brazilian Civil Code, from which the admissibility of the pledge is inferred. The difficulties of constituting and enforcing such a security are discussed: possession of the work, economic valuation of the pledged asset, the weakening of the security where a moral prerogative is invoked, and the absence of any formality attesting authorship and integrity. It concludes that both the author and the derivative rightholder may pledge the economic content, the two orders of prerogatives not being absolutely separable.