Brazil Piracy Concerns at USTR Follow MPA Anti-Piracy Deal Controversy

Early 2023, Brazil’s National Film Agency (Ancine) and local telecoms regulator Anatel (National Telecommunications Agency) announced a new anti-piracy partnership.

 

In isolation that was nothing out of the ordinary but just a couple of months earlier, ANCINE had announced a “reformulation” of its anti-piracy work. Specifically, it would “move away” from combating the distribution of pirate set-top boxes and similar work aimed at protecting the movie and TV sector.

 

“The understanding is that there would be an overlap in responsibilities with the National Telecommunications Agency (ANATEL),” ANCINE explained, adding that it would be combating copyright violations of Brazilian works on digital platforms instead.

 

Despite overlapping responsibilities, ANCINE still took part in the March 2023 wave of Operation 404. The agency’s logo did not appear alongside those of the MPA and ACE on the banners celebrating the next wave a few months later, however.

Concerns Over Comments in Brazil

In its submission to the USTR’s 2024 Special 301 Review, the International Intellectual Property Alliance (IIPA), which counts the MPA among its members, raised concerns over the situation in Brazil. Following the public hearing last month, the USTR asked IIPA to provide additional detail on why “recent positions vocalized by the Ministry of Culture and ANCINE officials concerning the protection of copyright” were seen as an issue.

ANCINE’s focus on the protection of domestic content is a problem, IIPA informed the USTR.

 

“This statement is troubling because it implies that ANCINE prioritizes the protection of domestic works and will not take actions to ensure the adequate and effective protection of works owned by U.S. rights holders, raising questions regarding Brazil’s international obligations,” the response notes, briefly, with almost no context.

 

To summarize IIPA’s submission, Brazil received praise for taking down 868 websites and applications, for taking action in eight states against live sports piracy, for deploying site-blocking injunctions, and for carrying out search and seizure raids and arresting pirates.

 

Ultimately, however, “several long-standing normative and legislative concerns warrant keeping Brazil on the Watch List,” the IIPA wrote.

 

So did Brazil suddenly become uncooperative overnight for no reason? Not exactly; in fact, deeper cooperation with the MPA played a significant role in the decision to prioritize local content protection.

ANCINE’s Special Agreement With the MPA

In April 2021, ANCINE announced it had signed “technical cooperation agreements to intensify the fight against piracy of audiovisual content.” This involved gaining access to automated systems to help it fight piracy more effectively.

 

One of those agreements (pdf) would apparently cement a partnership between ANCINE and the Motion Picture Association Latin America (MPA-AL), which represents Disney, Netflix, Paramount, Sony, Universal, and Warner Bros. in the region.

 

At the time, ANCINE was clear that the deal meant it would gain access to automated systems that would allow it to “monitor irregularities” related to online advertising in connection with piracy-related products. There was never any real mystery about what it hoped to achieve.

Civil Servants Demand Access to Agreement

When reading a grand press release, people may reasonably conclude that grand moves are underway. They may even start to suspect that even bigger things are going on.

 

Beginning around September 2022, more than a year after the ANCINE announcement, ASPAC (Associação dos Servidores Públicos da ANCINE) an association of civil servants connected to ANCINE, sent questions to the cinema regulator seeking information concerning its agreement with the MPA. ASPAC also filed an access to information request through which it hoped to obtain “copies of all documents involving the MPA and the use of the Ether platform.”

 

Among other details, ASPAC expressed deep concern that the deal with the MPA prioritized the protection of foreign movies over those created in Brazil.

EtherCity Anti-Piracy Services

EtherCity is an entity that “provides services, advanced automation solutions, and business intelligence for brand protection and anti-piracy operations.” Founded in 2018, EtherCity claims to be based in São Paulo, Brazil, and currently lists the MPA, ACE (Alliance for Creativity and Entertainment) and ANCINE as clients. Ether appears to be one of its anti-piracy platforms.

 

EtherCity’s website reveals a client list that goes way beyond the world’s most powerful movie studio association and the world’s most powerful anti-piracy coalition. Both ANCINE and Brazil telecoms regulator ANATEL are listed as clients alongside the likes of Prime Video, Discovery Plus, Netflix, Sky, Paramount Plus, HBO Max, Hulu, Roku, Warner, ESPN, Fox, and the list goes on.

 

EtherCity data has been cited in ACE reports (pdf) and EtherCity reports on ACE anti-piracy action have concluded how effective that’s been against LATAM-focused pirate sites.

 

The São Paulo operation is also mentioned in annual reports published by the local CNPC anti-piracy program in Brazil. EtherCity has been involved in efforts (pdf) to delist pirate TV box ads from Google and Meta platforms, and mentioned in respect of proposed subsidies for reverse engineering pirate set-top boxes in 2021.

ASPAC Opposes ANCINE/MPA Deal

ASPAC made several allegations concerning the ANCINE/MPA deal, including that the software in use at EtherCity was developed by the MPA. Furthermore, ASPAC claimed that since the software was designed to protect the interests of MPA members, ANCINE’s use of the software meant that Brazil’s cinema regulator was working in defense of Hollywood and against its rivals’ products.

 

Crucially, that included Brazilian films that receive no MPA protection, ASPAC claimed.

 

ASPAC further alleged that the deal should’ve been published in the Diário Oficial da União, the official journal of the federal government of Brazil. Instead, it had to resort to a freedom of information request to find out what had been agreed.

 

The letter was signed by ASPAC’s president; it called for a public consultation and an investigation into who was responsible for a deal that “does not comply with the minimum legal requirements and ends up distorting the very purpose of public policy.”

MPA: We Don’t Interfere, Anti-Piracy Work is Normal

In a statement to local publication Metropoles, Andressa Pappas, Director of Government Relations at the Motion Picture Association, said that support for copyright everywhere is effectively what the MPA is best known for.

 

“Supporting content protection and anti-piracy measures has always been one of MPA’s global key actions. As trusted advisors to authorities around the world, the MPA provides several tools, such as technical expertise and research, as it aims to defend a better scenario for audiovisual and copyright, including in Brazil,” Pappas said.

 

The MPA further added that it “does not interfere and has no impact on decisions taken within the scope of public administration” since it “respects the autonomy of public bodies and entities in Brazil.”

No Serious Issues Found, Damage Already Done

It was later revealed that ANCINE’s access to the Ether system would allow it to identify problematic ads related to set-top boxes and instances of copyright infringement on websites. The agreement allowed ANCINE to use that data for enforcement purposes, including against infringers directly and in support of site-blocking measures. ANCINE could use the system or not, there were no strict requirements. Some issues did remain, however.

 

The agreement was considered confidential and that ran counter to a requirement for transparency. Criticism from ASPAC held that by using a platform provided by the MPA and designed to protect its own content, ANCINE had effectively delegated its supervisory powers to the MPA.

 

That subsequently led to ANCINE announcing the previously-mentioned “reformulation” of its anti-piracy work and its move away from targeting pirate set-top boxes. ANCINE’s Anti-Piracy Coordinator, Eduardo Luiz Perfeito Carneiro, was dismissed, and his replacement was given a new title to reflect the new image and direction of ANCINE.

 

Carlos Chelfo, Copyright Protection Coordinator at ANCINE, was instructed to review work with the MPA to ensure that, moving forward, the protection of Brazilian content would always take priority. The deal itself was terminated.

 

And that’s why Brazil is causing such concern for the IIPA in the United States, and what prompted its comment to the USTR:

 

“This statement is troubling because it implies that ANCINE prioritizes the protection of domestic works and will not take actions to ensure the adequate and effective protection of works owned by U.S. rights holders, raising questions regarding Brazil’s international obligations.” IIPA to USTR – 2024 Special 301 Review

 

In isolation, it might sound that Brazil suddenly became uncooperative for no reason. With context, it simply shows both countries putting their own interests first. How the that will be viewed at the USTR and reflected in the Special 301 Report will be revealed in just a few weeks.