Os direitos fundamentais autorais – do analógico ao virtual: o caráter humanista dos direitos de autor e suas funções individuais e sociais

Abstract

During the evolutionary process of copyright, the patrimonial aspects prevailed, while moral rights were often relegated to the background. Despite it is genesis is marked by the archaic nature of the monopolies, the national and international legislation on the subject has progressed, considering the social, economic and cultural aspects, reverberated on the intellectual creations. The problematic of this study emerged due to the authorial conflicts amplified from the advent of the internet, scientific and technological progress responsible for extinguishing the notion of scarcity on intellectual property, timelessly accessible in the cyberspace environment. Intellectual creations are made available on the network in the format of digital media, making it even more difficult to prior control over possible copyright violations, existing from the analog environment and intensified in the digital environment. In current legislative forms, it is required a hermeneutic performance of the contemporary jurist in order to consider the various uses of intellectual creations by the information society, without violating copyright interests, as fundamental legal principles. In order to propose solutions to the aforementioned problem, it is necessary to demonstrate that the alternative use of intellectual creations with the aid of atypical contracts, the copyright legislation or the Judiciary, through the functionalization of copyright on intellectual works, contributes to the realization of the fundamental right culture in light of the social function of copyright. In the first stage, describe the historical evolution of copyright to modernity, showing the social relations directed to the use of intellectual creations on the Internet and its social, economic and legal implications. In the dogmatic international and national level, it is corroborated by International Treaties and Conventions on the subject, the Federal Constitution and Law Nº 9.610/98. It is possible to find legal solutions that functionalize the copyright and cultural rights, explaining its jurisprudential treatment by the Superior Court of Justice (STJ). The types of bibliographic and jurisprudential research are used to investigate the hypotheses raised. The first allows us to understand the theoretical frameworks of copyright, from the historical moment of its formation to the present day, with a focus on national and international doctrinal contributions on the theme under study. In the jurisdictional environment, the doctrine of fair use, embodied in article 46, of Law Nº 9.610/98 is corroborated. To illustrate the jurisprudential treatment of the country on this topic, stands out a ruling issued by the Superior Court of Justice (STJ) involving musical and cultural copyrights, specifically providing for the justifiable use of intellectual creations, their pedagogical, social and cultural purposes. The humanistic character of copyright must be safeguarded. Possible collisions between copyright and cultural legal principles can be resolved through public management (ECAD) or private (contractual instruments) of property copyright. Funcionalizes the copyright in light of the normative and axiological foundations inscribed in the national and international legal order.