The quill and the brush: the Law Project of Pedro Américo about Artistic and Literary Property and the dialogue between Politics, History and Art

Madalena Zaccara[1], Valéria Augusti[2] e Marcílio Toscano Franca Filho[3]

ZACCARA, Madalena; AUGUSTI, Valéria; FRANCA FILHO, Marcílio Toscano. The quill and the brush: the Law Project of Pedro Américo about Artistic and Literary Property and the dialogue between Politics, History and Art.  19&20, Rio de Janeiro, v. XI, n. 1, jan./jun. 2016. Disponível em: <http://www.dezenovevinte.net/criticas/pa_direito_eng.htm>. [Português]

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About laws and arts - an introduction

                     1.            For many and varied reasons, the State always has been very close to the arts and the artists, be it as patron, promoter or supporter, be it as a regulating agent, censor or even collector. The relationship between art and State would surely give cause to a large encyclopedia that would include whole areas of Public and Private Law, not to mention other extensive fields of knowledge connected to Sociology, Political Science, Anthropology and Aesthetics.

                     2.            Taking only the specific field of the Legislative Power in Brazil, it is noticeable that it isn’t just today that the Brazilian State worries about defining, regulating and protecting the interest of aesthetic works’ authors. Already in the Law of August 11th of 1827, that created the legal courses in the country and the Criminal Code of the Empire (Law of December 16th 1830) there were references to the regulations in the civil and penal spheres. As a matter of fact, still referencing a “privilege” and not a “right,”[4] the Article 7 of the Law that instituted the first Colleges of Law in Brazil (one in the city of São Paulo and the other in Olinda),

                     3.                                                  Art. 7.º - The professors will do the choice of the compendiums of their professions or will arrange them, not existing any already made, as long as the doctrines are in accordance to the system sworn by the nation. Those compendiums, after approved by the Congregation will serve temporarily; submitting iself then to the approval of the General Assembly and the Government will print them and provide them to the schools, giving their authors the exclusive privilege of the work for ten years.[5]

                     4.            Three years later, the Criminal Code of the Empire included among its legal descriptions against property the following device:

                     5.                                                  Art. 261. Print, record, lithograph or introduce any writings or pictures that were made, composed or translated by Brazilian citizens, for as long as they live and ten years after their death, if they leave heirs. Penalty - loss of every exemplar to the author or translator or their heirs; or in their absence, of their value and another equal sum and a fine of thrice the value of the exemplars. If the writings or pictures belongs to a Corportation, the prohibition to print, record, lithograph or introduce will last only for a space of ten years.[6]

                     6.            As it can be seen, made independent in 1822, Brazil already showed, since its youth, a growing, albeit ineffective, worry about regulating the author’s rights. Prof. Carlos Alberto Bittar points that that worry had just foundation:

                     7.                                                  Edited the mentioned texts, in both planes, it was felt in the bosom of the Legislative, the need to regulate legally the author’s rights in the civil scope, through specific diploma, in which their basic lines were traced, following the example of other countries, such as Belgium and Italy, that mid last century [18th Century], already counted with a particular law for the topic. Of that our legislator gained conscience through the finding that the intellectual progress of the country was depending on this regulation, as a stimulus for the creation of new productions in the domains of literature, art and science.[7]

                     8.            It is in this environment that emerges not only the first law projects to regulate the authorial issue - such as those of the congressmen Aprígio Guimarães (1856), Gavião Peixoto (1858), of the also novelist José de Alencar (1875), the senator Diogo Velho (1886), the congressman Augusto Montenegro (August 7th of 1893) and of Pedro Américo de Figueiredo e Mello (July 12th of 1893) - but also some international deals about the topic that Brazil becomes part of - such as the one celebrated with Portugal in September 9th of 1889 (internalized by the Decree nº 10.353, of September 14th of 1889)[8] and the literary convention celebrated with France in January 31st of 1891 (that wasn’t admitted by the Brazilian parliament.[9]

                     9.            The present article has no other goal than to shed some light over that law project signed by the painter and congressman from Paraiba, reflecting over his performance, in the parliament, in the area of copyright. This goal is justified by the prominent position that Pedro Américo occupies in the Brazilian artistical panorama. Author of paintings that compose the very own visual identity of the nation (such as O Grito do Ipiranga [Figure 1]  and Tiradentes Esquartejado [Figure 2]), Pedro Américo de Figueiredo e Mello was born in the city  of Areia in Paraiba, on 29th April of 1843 and passing in Florence (Italy) in October 7th of 1905.

                  10.            When the French naturalist Louis Jacques Brunet arrived in his home city, in the humid region of the Brejo of Paraiba, leading a scientifical expedition that was doing research for the National Museum, he meet the boy known for doing portraits with great technical accuracy of a capuchin friar deemed saint by the inhabitants of the region. It was thanks to those portraits that Pedro Américo joined the expedition for approximately 20 months.[10] From this meeting resulted the recommendation of the youth to the President of the Province of Paraiba and, following this, a recommendation to the Emperor, which made possible his enrollment in the Imperial Academy of Fine Arts, in Rio de Janeiro, in the year of 1854.

                  11.            Five years later, Pedro Américo requested to the Emperor a scolarship in the ammount of 400 réis monthly to go study in Europe. He had at that time 16 years old and carried in his pouch a letter from his old teacher, the important painter Manoel de Araújo Porto-Alegre. After a season of studies in France and in Italy, Pedro Américo returned to Brazil, in 1864, against his well, to minister classed in the Imperial Academy of Fine Arts. It didn’t took him long to ask for an unpaid leave and return to Europe, obtaining in three years a doctorate degree, in the Science College of the University of Brussels, with a thesis about “Science and the Systems: Questions of History and Natural Philosophy,”[11] being asked to become a professor in the University of Brussels. In 1869, returned again to Brazil, but not without oscillating many times still over the Atlantic, towards the Old Continent, until his death.[12]

                  12.            It was precisely in one of those periods that he left the Europe he so adored, right after the Proclamation of Republic (1889), that Pedro Américo was elected a congressmen through the Republican Party of the Province of Paraiba. It is about this final stage of his life, as a parliamentarian of the Republican regime and legitimate representative of the artistical classes in the Brazilian parliament, that the present work focused from now on.

Pedro Américo, the Republic and his reinvention as a parliamentarian

                  13.            The fall of the Brazilian monarch in 1889 wasn’t a surprise. In its roots the country did not had a true monarchic tradition and the republican ideal was always present in a way or another. Besides this, the Brazilian monarchy was always an exception to the South America panorama. On the other hand, the keeping of colonial features, based on the slavering monoculture estate represented a serious obstacle to the urban-industrial progress of the country. The growth of the abolitionist process and its strengthening worked against the monarchic regimen and the interest of the oligarchy that was based on slavery. The antagonism of the new (urban-industrial and abolitionist) with the old (agricultural export and slavery), tied to other structural matters, such as the restrictions that the church and the army started to do towards the monarchic centralism, determined the passage from Monarchy to Republic, through a state coup executed on November 15th of 1889. In that moment, the traditional oligarchy, supporters of slavery, despite an appearing contradiction, adhered to the coup, since the empire had abolished slavery without a single restitution to the owners of this kind of labor.

                  14.            The conflicts between the two parties that alternated the power during the empire, the Liberal and the Conservative, also contributed to the fall of the regimen. Some unhappy liberals brokered an alliance with the republicans, still little organized, and created the Republican Party in 1870. The press, in general, took advantage of the tolerance of the emperor and a liberal constitution to make propaganda of the republican system.

                  15.            Brazil’s victory in the Paraguay War was also decisive to the ascension of Republic, the military, proud of their accomplishments, wanted a bigger political participation. Summing up all those multiple circumstances, a rupture with the imperial government system became thus inevitable. The population, however, did not participate in the birth of the Republic. The people had no interest for those changes. Pedro II was well seen by great part of the society, exempting certain middle classes (urban, abolitionists, industrials and merchants) and the transformations, as usual, arrived from top down. The emperor and his family were banished. They exiled themselves in Europe, the Empress Tereza Cristina dying in December of 1889, in the city of Porto and the Emperor in Paris, two years later. It was only in September 3rd of 1920 that the banishment decree was revoked, by the then President Epitácio Pessoa, another citizen of Paraiba as Pedro Américo.

                  16.            The proclamation of the Republic in Brazil was, therefore, a product of the elites. It was necessary, however, a sort of legitimization o the new power through the popularization of its ideals and the forming of a republican image to internal consumption, which became the first goal of the First Republic. Three currents disputed the definition of the ideological nature of the new regime: the American liberalism, the French jacobism and the positivism.[13] Those three ideologies opposed themselves intensively since the beginning of the Republic. All ended, however, with the posterior consolidation of the first alternative: the liberalism.

                  17.            The positivists formed the most active and pugnacious groups in the attempt of turning the republic regime not only accepted by the populace but loved by the people that, at first, did not wish it. Their weapons were literature and civil symbols. The lack of republican identity provoked the need of the creation of an iconography of persuasion of the population that had as main goal educate the “soul” of the people spreading political and moral values that would contribute to the affirmation of the regime in a solidification process. Similarly to what was seen in Italy and Germany of the first half of the 19th Century, this need reflected itself in favoring a thematic related to the history of the national with large usage of an allegoric language. Between the symbols used in the retina education to the acceptance of the Republic, one of the most important was the figure of Tiradentes,[14] who represented the Christ, the civic hero, the martyr and the libertarian, civil and military, a symbol of the country and, at the same time, of the republican subversion. This projected iconography  was part of the battle to the conquest of an image by the new political system.[15]

                  18.            Pedro Américo participated actively of this process. He worked for the republic as he had worked for the monarchy. His artistical conceptions will also reflect this Brazilian political change. In 1889, the military coup that instituted the republic surprised Pedro Américo, in Florence about to start a celebratory painting of the abolishment of the slavery commissioned by the imperial government of D. Pedro II. The works were, naturally, interrupted. Américo needed, however, urgently, set himself free of his image of protégé of the exiled emperor and take side along with the new power: it was a matter of survival. His political abilities manifested once more under those circumstances and he, that despite the fact of having been greatly benefited under the empire had always kept his connections with the republicans, could count on many friends established with the new government of Marshal Deodoro da Fonseca. To secure a position in this picture of power, it was necessary to act fast and, after all, Américo was never one to hesitate.

                  19.            One of his first steps was to execute the painting that he had promised to do for free a few years back to the old Regime. He painted it with great celerity. In April 1890, the secretariat of the new government accuses the reception of the canvas Voltaire blesses in the name of God and Liberty the grandson of Franklin [Figure 3].[16]. A work conceive with a thematic politically correct to the new times

                  20.            The first republican times were not favorable to the arts in a general manner. The brazilian political elites were busy consolidating the regime and the patroning of Pedro II no longer existed. On another hand, the Brazilian middle classes were not enough informed or wealthy to interest themselves in the visual arts in the sense of patronizing it. Pedro Américo faced this new reality: he had painted, in Florence, a series of works involving a thematic turned to the execution of exotic animals, probable fruit of his young years in Algeria. From those works he set up, perhaps, one of the first exhibits made for the Brazilian middle class, exposing in a store, La Glace Elegante, that sometimes acted as a gallery of art in Rio de Janeiro. Nobody bought a single piece. Only a thief, worthy of note if his identity was known, seemed to care for the painting of the republican Brazil: he stole a small canvas.[17] It was at least something in the way of “exit”. It is with this background of “cooling” of the national market of art that Pedro Américo joins the Chamber of Congressmen.

                  21.            In truth, the political-partisanship vein of Pedro Américo started to gain more expression still in the empire, in the end of the 19th Century, precisely after the electoral reform of 1881 that democratized (slightly) the vote.[18] In April of that same year, he wrote to his family and friends and asked for help to a small candidacy.[19] Later, he sent a manifesto from Florence, dated from June 20th of 1881, addressed to the political leaders of his home province. In this document, he asked for the help of the representatives of the Conservative Party to get a chain in the Parliament:

                  22.                                                  [...] Knowing in this way the great service done by the conservative party towards the public cause, as well as the justice and equity with what they proceeded in the application of his program, it is under the glorious banner of your representatives that since this moment I place myself  [...].[20]

                  23.            In July 16th of 1881, he made another appeal, this time destined to the inhabitants of his city of Areia. In it, he presented his political platform, speaking of his love for his hometown and affirming that, at last, he could collaborate to the development of the region, since the legislation had changed and allowed for the popular vote of laborers such as him:

                  24.                                                  Shuddering child of the North Parahyba, from where powerful circumstances has distanced me from, [...] I wouldn’t for sure cease the thread of my aesthetics occupation and my scientifical research, the work of a civilizing and pleasurable time that I took, I wouldn’t attend to the voice that summons me to the arena of political disputes, if in me the patriotic feeling didn’t rise above personal considerations. [...] The legislation, however, of this country that I had fixed in my mind as a star of courage, was an invincible obstacle so that I,, simple laborer of the true and the beautiful, was allowed to collaborate directly as the statesmen and the soldier in the perfecting of exhortation of the Country.[21]

                  25.            A few months after having written to the conservatives, he communicated again with his family, affirming that he would also accept the offer of the liberals to represent them, should that happen “or introduce me as a candidate through the circle that would be best fitting”.[22] His actions in that regards would, thus, demonstrate great “pragmatism” and little adhesion to any political ideology.

                  26.            Created in 1870, the Republican Party, in which he had numerous friends and through which he would be elected during the First Republic, already existed at that time. However, it is not known any public manifestation of Pedro Americo in regards to the republicans, during the second reign. This dubious behavior resulted in several misunderstandings with his friends. In response to a letter of Daniel Ferro Pedro Cardoso, staunch republican, Américo defends himself from the accusations in which he repproaches him of his servitude towards the imperial family. The painter denies the accusations and says that in the royal palace he is accused of exactly the same: being republican and ungrateful in regards to the favors received by

                  27.                                                  You accuse me of cajoling the imperial family, of looking too differently from you and our friends of forward ideas [...], they painted me in the court with republican and ungrateful colors. Ungrateful I was, because to some of my best acquaintances I did not curse the monarchy, ungrateful I was called by the monarchist for not breaking with my old affections.[23]

                  28.            Indeed, Américo was a public persona that sometimes declared himself available to the conservative, sometimes to the liberals, accepted support of the monarchists and republicans and took no sides to any of the factions. There was, thus, any ideological coherency in his political behavior.

                  29.            From Florence, Pedro Américo wrote a manifesto dated from February 15th of 1890 in which, among critics to the old regime and praising of the new, he proposed to represent in the new constituent assembly the artisans and laborers in general:

                  30.                                                  I don’t know among the old directors of the politics of our country a single man that understands the importance of the brazilian artist. Used to the strictly partisan disputed and the sophisms of the imperial demagogy mother of the national disbelief and lack of exigent, almost all have distinguished themselves by the disdain towards the representatives of the artistical activity and reward with the most absolute despise most of those of whom, many times, they owed their triumphs. [...] The proclamation of the democratical regimen in Brazil must banish from our soil even the last remnants of this immoral and dissolute spirit, to which the Brazilian owes the dismay that paralyzes it, and this State it’s backwardness, poverty and absolute decadence [...] Used to the disputes of thought, the combats and adversity, the independency of the words and action, strong for the security in living honestly in any part of the world without having ever weighted upon the coffers of my country nor needing to deceive the public opinion to obtain the glory that I have only waited from my labor, I have thus reason to wait from you the highest distinction of representing you in the bosom of the next Constituent Assembly [...][24]

                  31.            His words, albeit written in a moment of fight for survival, do not convey an image of loyalty. He not only poses himself in a positive manner in regards to the new regime, but also denies his previous ties with the empire and attempts to disparage them, maximizing a personal independency that never really existed, since, ever since his childhood, he had depended upon the kindness of the imperial regime. After those emergency measures, Americo departs to Brazil.

                  32.            In that same year he is elected constituent congressman through his home province, the North Parahyba, through the Republican Party, having the future president of the republic, Epitácio Pessoa as his bench colleague. He packed, leaves Florence with his family and installs himself in Rio de Janeiro, in the Rua do Lavradio n. 69[25]  to perform his new functions. During his term, he presents some projects connected to arts and culture. Among them, the proposal of the foundation of a National Gallery of Fine Arts (independent, artistically and financially, from the proposal of the National School of Fine Arts), the proposal of the creation of a national theater, a project about the creation of universities in Brazil and that project of law about author’s rights.

                  33.            But, in truth, Pedro Américo was much more a spectator than the actor in the Brazilian political scenario. The country never did attract him not during monarchy nor during the new regime, because at each recess of the Assembly and, sometimes, even during its full activity, he would flee Brazil and return to Florence. After the marriage of his only daughter, Carlota, with his future biographer Cardoso de Oliveira, Pedro Américo left the country, returning only in 1892, to temporarily occupy his position. In 1893, finished his term as congressmen, nothing further motivated him to remain in Brazil. He did not wish to live in a place that he did not love and that didn’t offer him better possibilities, in the sense of a copious market for his work. He returned to Italy definitely.

The congressmen Pedro Américo and the Project of Law about Copyright

                  34.            In an edition of September 1892, it is read in the newspaper “Le Droit d'Auteur”, the official organization of the then Union Internationale pour la Protection des Oeuvres Littéraires et Artistiques, that in January 31rst of 1891, in the city of Rio de Janeiro, the governments of Brazil and France signed a Literary Convention that yielded vivid debate:[26]

                  35.                                                  [...] Le 31 janvier 1891 un projet de convention, littéraire, artistique et scientifique, était signé, à Rio de Janeiro entre M. Bocayuva , alors ministre des affaires étrangères du gouvernement provisoire de la République du Brésil, et M. Blondel, notre chargé d'affaires en ce pays. Dès l'abord le projet qui protégeait les droits de nos nationaux fut accueilli de façon favorable par la presse brésilienne, et par la jeune école littéraire du pays, qui comprenaient, quels immenses services notre littérature avait rendus et devait rendre encore au Brésil, et appréciaient le dommage subi par nos auteurs, dramatiques, et par nos romanciers qui ne retiraient aucun profit de la vulgarisation considérable de leurs oeuvres soit dans les théâtres, soit dans lés journaux du pays. D'un autre côté, le projet de convention rencontra une assez vive opposition dans le vieux parti brésilien, opposition qui, sans aucun doute, ne saura avoir une influence sérieuse dans la discussion générale qui doit avoir lieu le mois prochain devant le Congrès, des, députés tenu à Rio de Janeiro. Un dès, esprits les plus éclairés du Brésil, M. Alberto de Carvalho se fit le porte-parole du parti opposé à la convention littéraire et, dans le courant de l'année dernière, il faisait paraître un libellé intitulé Imperio et Republica dictatorial dans lequel il entassait force arguments, cherchant à démontrer aux membres du prochain Congrès que la ratification du traité de protection, passé entre MM. Bocayuva et Blondel serait: non seulement une erreur, mais encore une faute grave.[27]

                  36.            According to the newspaper, however, that convention french-brazilian was an instrument of great importance to “consacrer l'émancipation dû prolétariat intellectuel du Brésil, aujourd'hui sacrifiéà une féodalité de, spéculateurs, de copistes, et de plagiaires - en même temps que le développement de la littérature nationale.”[28] The deal, however, did not came in effect, due to, by a narrow margin of votes, having been rejected by the Brazilian National Congress, in a vote that took place in July 6th of 1893, after long and strained debates. The specialized press thus reported the fact:

                  37.                                                  Rejet du traité littéraire avec la France - Dans la séance du 6 juillet 1893, la Chambre des députés du Brésil refusa d'approuver le traité littéraire conclu le 31 janvier 1891 entre les Gouvernements français et brésilien représentés par MM. Blondel et Araripe. Cette décision regrettable, précédée d'une discussion longue et animée qui occupa plusieurs séances, fut prise par 67 voix contre 59, soit à la majorité de 8 voix ; mais comme deux députés absents au moment du vote se sont déclarés favorables au traité, la majorité des rejetants se trouva, de fait, réduite à 6 voix. Nous regrettons beaucoup de ne pouvoir analyser ici, faute d'espace, les brillants discours des défenseurs du traité, MM. Nilo Peçanha et José Avelino, ni celui, très habile, de son adversaire principal, M. Augusto Montenegro, ni les deux rapports de la minorité et de la majorité de la commission des affaires diplomatiques et des traités, présentés par les mêmes personnages. La question avait, d'ailleurs, été déplacée adroitement par les ennemis du traité et transformée en un débat général sur les concessions réciproques à stipuler entre les deux nations, et, sur ce terrain, ils faisaient valoir des griefs qui compliquaient beaucoup la tâche des partisans de la protection internationale des droits d'auteur:

                  38.                                                  1° Ce sont uniquement les auteurs français qui tireront profit du traité;

                  39.                                                  2° La France a établi, au préjudice du Brésil, des tarifs douaniers très rigoureux pour le café exporté de ce pays ;

                  40.                                                  3° La France maintient la circulaire prohibitive de l'émigration au Brésil, qui constitue une véritable mesure d'exception et consacre un régime odieux.[29]

                  41.            Six days after the rejecting of that treatise, in July 12th of same year of 1983, Pedro Américo, in his condition as congressmen of the Republican Party through his home province, took the stand, requesting that the discussion about the rights to literary and artistical property was resumed, since, in his view, the question would have been “discussed poorly and incompletely”.[30] Referring not only to the refusal of the Literary Convention of Brazil-France, but also to the projects of law elaborated by the novelist and congressman José de Alencar and by the senator Diogo Velho Cavalcanti de Albuquerque, he proposed a new project with the goal of regulating the rights of property in the art market.

                  42.            In regards of this new project, the aforementioned newspaper, “Le Droit d'Auteur”, thus manifested:

                  43.                                                  Six jours après le rejet du traité, le 12 juillet 1893, M. Pedro Americo de Figueiredo et seize autres députés déposèrent un projet de loi très libéral réglementant les droits d'auteur et assimilant les étrangers aux nationaux en tout, sauf en ce qui concerne la durée de la protection, limitée à celle du pays d'origine de l'oeuvre. M. [Augusto] Monténégro déposa à son tour un contre-projet, très restrictif, destiné seulement à satisfaire les nécessités du moment et tiré en grande partie, mais avec des modifications substantielles, de la législation allemande. Le premier projet, dû à M. Americo, auteur de livres, de tableaux, de quelques ouvrages scientifiques, habitué à traiter avec les éditeurs et les marchands d'objets d'art, membre du Congrès de la propriété littéraire et artistique de Paris en 1889, est - dit l'auteur lui-même - un travail en grande partie original, inspiré par ma propre expérience et approprié à notre pays. Ce travail mérite d'être consulté.[31]

                  44.            It is well to remember that two years before, in 1891, with the proclamation of the first Republican Constitution (to which Pedro Américo was one of the constituents), the authors had some rights guaranteed about their creations, according to the article 72, § 26, of the text of that Magna Charter: “To the authors of literary and artistical works it is guaranteed exclusive rights of reproducing it by press or any other mechanical process. The heirs of the authors will benefit from this right through the time that the law determines.”

                  45.            The project of Pedro Américo, that seeked to grant higher concreteness to the aforementioned constitutional device, counted with streamlined eleven articles and was signed initially by sixteen other congressmen: A. Fialho, Luiz Murat, Conto Cartaxo, A. Cavalcanti, Martinho Rodrigues, J. de Serpa, J. Retumba, Nelson de Vasconcellos, B. Carneiro, Oliveira Pinto,Antonio Olyntho, Mursa, Seabra, Manuel Coelho Bastos do Nascimento, Homero Baptista and M. Caetano. In the speech he made when forwarding to the Desk of the Congress Chamber in the session of July 12th of 1893, under the guise of reason exposal, Pedro Américo, with the intent of legitimizing his project, affirms that this is wouldn’t be just “a compilation” of the projects that were done before, but rather “a work in great part original”, because it was “inspired in his own experience in the matter”.[32] Immodest, Pedro Américo takes the stand to stress:

                  46.                                                  Author of book and painting, cultivator of the science in which I have also produced some brochures, used to treat practically about the subject with editors and brokers of works of art, I couldn’t stop to bring forward in this house the fruit of my experience and my personal impressions, to submit it to the wise consideration of my peers, among which exists so illustrious jurists, as well as brilliant literati.[33]

                  47.            It is noticeable right at first the fact that the project does not establish, as some of its antecessors did, any sort of distinction in regards of the nationality of the author, which means that were the latter Brazilian or foreigner, they would all benefit from the copyright protection, as can be seen in the articles 1 and 2 of the project of Pedro Am

                  48.                                                  Of the copyright

                  49.                                                  Art.1° It is guaranteed the copyright to all citizen, national or foreigner, that produces works of literature, art or science by his own conception or composition.                                                

                  50.                                                  § 1° This right consists in that only he can sign his name in the aforementioned work, alter it, modify it, hide it whimsically, damage it or even destroy it.                                                

                  51.                                                  § 2° Such rights are only transmissible by the author’s own express

                  52.                                                  Of the rights of property of the author regarding his works                                              

                  53.                                                  Art. 2º. It is likewise guaranteed the right of property to all citizen, national or foreigner, that produces work of literature, art or science by his own conception or composition.

                  54.                                                  § 1°. Such rights consists that only the author of a work of literature, art or science of his own conception or composition can alienate it in its part or its sum, expose it, reproduce it or authorize its reproduction and take from it whatever sort of advantages he wishes.

                  55.                                                  § 2°. It is a right transmissible like that of any other property.[34]

                  56.            In the light of the above aforementioned instruments, it can be observed also that, innovating in regards to the past projects, Pedro Américo anticipates a rather important duality in the matter of copyright, that is, the reference, avant la lettre, to moral rights (which he calls the “copyright in his first article) and the ownership rights towards the created work (which he calls of “rights of property of the author regarding his works” in his second article). Many decades later, the current Law nº 9610 of February 19th of 1998, that alters, updates and consolidates the Brazilian legislation about copyright, would continue to use this division in its art. 22, in verbis “Art. 22. It belongs to the author the moral and patrimonial rights regarding the work he created”. The duality established by Pedro Américo in the arts. 1 and 2 of his project remains confirmed and repeated in the art. 4º:

                  57.                                                  Art. 4º. The forwarding of the literary, artistical or scientifical property rights does not leads, unless there is an express convention or accordance in a special contract, to the forwarding of the copyright nor the authorization to the assignee of reproducing in whatever manner, including translation, the alienated work.[35]

                  58.            In other words, when alienating the patrimonial rights of his work, the author does not cease to maintain a series of other rights (moral), in a way that, by consequence, he keeps certain power over his artistical production, being allowed to interfere, as mentioned above, in the process of reproduction or translation of the alienated work. Based on this same dichotomy, the transmission to a third party of the so called “copyright” (such as the alteration or destruction of the work) relied in the express will of the author (according art. 1º., §2º., of the project of law), which no longer exists today (art. 24, §1º., of the Law nº 9.610/1998). The patrimonial rights, however, were transmissible (and thus remain) such as any other property rights (according to  art. 2º., §2º., of the project of law).

                  59.            Comparing the project of Pedro Américo with the one from José de Alencar, from 1874, there is a disagreement regarding the duration of the cession of rights to third parties that, for the novelist, has no limitation, while for the painter Pedro Américo, it should, according to his art. 3, remain for as long as lives the author or assignee and prolong itself for “50 years after his death in benefit to his heirs, or the state on a permanent basis, should those not exist.”[36] The current Law 9.610/98 defines, in his Art. 41, that “the patrimonial rights of the author remains for seventy years, counted from January 1rst of the subsequent year of his passing, abided the order of succession of the civil law”. In the unique paragraph of the same article, it adds: “It is applied to the post-mortem works the deadline of protection that the caput of this article references”.

                  60.            Pedro Américo, approaching the matter of the translators, establishes an important terminological difference between those two social actors: the author and the translator. The congressman from Paraiba does not gives the title of author to the translator, but, just as it was done previously by José de Alencar in his 1875 project, he dictates that the translation work should, also, be protected of undue misappropriation, according to the §4°, of the art 4º. of the Project of Law of Pedro Américo:

                  61.                                                  §4° The translator or mechanical reproducer of literary, artistical or scientifical works will benefit from the rights of property regarding his translation or reproduction, not being able, however, o prevent that others publish or expose to sale other translations or reproductions of the same object.[37]

                  62.            Observe that, although the translator and the author are protected by the project of law, they hold differences in their statute, in such way that to the first it is given the right to alter, damage or hide his artistical or literary production, while the second receives only the right regarding his copy or translation, not being allowed to the latter to restrict by his own accordance the social circulation of other copies or translations of the same work, unless he has thus negotiated with the owner of the patrimonial copyrights. In practice, that represents, in terms of bookselling market, the opening of the free commerce, since the same work could suffer countless translations, as long as the copyright is respected. In effect, the §2° of the art. 5º of the project of law of Pedro Americo addresses that the rights of literary property encompasses the exclusive right of do or authorize the translation of the work.

                  63.            Considering that promise from the first speech of Pedro Américo, which was, of bringing his personal experience in the elaboration of the aforementioned project, it can be said that the inclusion of an article dedicated exclusively to the rights of property in the figurative and plastic arts is its major differential. Thus, the art. 7° of his project of law establishes that the “cession of a work of art does not grant its acquirer, save from contrary adjustment, the right of reproduction, whatever be its form”[38] To preserve the public interest, in the paragraph §2° of the same article it is written, however, that “if, however, the acquirer is the State, county or some public establishment and the reproduction is deemed to be of blatant national interest, the right of the author to fully forbid it ceases to exist, leaving the author only that of choosing the reproducers and demand a proper monetary restitution”

                  64.            The provisions of the art. 7 and his successive paragraphs from the project of Pedro Américo did not extend itself, however to the “works of architecture that does not have a blatant artistical purpose, to the explanatory plans and pictures, geographical, topographical and other such similar maps, without special merit, furniture to the usage of schools and other public establishments and in general the anonymous works done to assist the teaching, labor or to satisfy intellectual needs without transcendence”. In sum, Pedro Américo, in this last paragraph, establishes, in a certain way, two opposing fields in regards to the figurative production: one that would belong to the domain of art, whose core attribute would be “transcendence” and another, part of a domain tied to “practical” destination, aimed to the technical reproduction, such as the educational or labor usage, supposedly lacking finality or quality properly artistical.

                  65.            The project does not finishes without, first, mentioning in the arts. 8º. through 11, the matter of plagiarism and the mechanisms of protection against the violation of any of the copyrights, punished with fines and monetary restitutions to the author. Particularly interesting is the protective trait of the art. 10 that punishes the intentional debasement (by means of critic, certainly!) of artistical or literary work with the clear or hidden purpose of damaging the author.

                  66.            The project of Pedro Américo - and of the other many projects about copyright that came before - did not came to pass. According to what writes Carlos Alberto Bittar, this was the reason of the lack of success:

                  67.                                                  Obstacles of doctrinaire aspect always opposed itself to the many attempts made to endow Brazil of special law about copyright: the one that, as property, it could not deserve monopolistic attribution about ideas, since those belonged to the common collection of humanity. Due to this reason is that, basically, none of the countless projects of law presented in Brazil to the regency of the topic have not succeeded, since 1856 [...][39]

                  68.            Only in August 1898, five years after the proposal of Pedro Américo, would Brazil have its first law of copyright: the Law 496, whose authoring was the congressman.[40] However, this norm would be revoked in 1916, by the then new Civil Code, that destined a specific chapter about the theme - “Of the literary, scientifical and artistical property” -, to approach the questions related to the author’s rights.

Brief Conclusion Note: Talk of the advancements

                  69.            The end of the monarchic system in Brazil represented also the vanishing of the imperial patronage that guaranteed the dynamic of part of the world of art and letters in Brazil. It is in this context, of “cooling” of the national market of arts, that Pedro Américo joins the Chamber of Congressman, right after the Proclamation of the Republic. Even with his participation in the Legislative lacking meaning, due to the constant trips to Europe, the painter from Paraiba inserted himself in an important debate about literary and artistical property, that worried artists from both sides of the Atlantic, as can be seen by the efforts of France in the sense of ensuring the signing of a convention between both countries. Be it Brazilian, Portuguese or French, the problem of the guarantee of rights about the artistical production in Brazilian soil worried many because it was overextending itself, without resulting in significant conquests. Not without reason, it is precisely six days after the rejection of the Literary Convention between Brazil and Europe that Pedro Américo presents his project of law to the legislative, in which is worth to mention the worry in ensuring identical rights to any artist, despite country of origin or residency. Were this not already a significant advance if compared to other projects, the one from Pedro Américo established, as mentioned before, the distinction between moral and patrimonial rights about the artistical production, in order to guarantee the interference in the process of reproduction or translation of the alienated work. Beyond that, the possibility of transmission to third parties, theme of any and all project elaborated in that century, would start to depend on the express will of the author (according to art. 1º., §2º., of the project of law), which no longer exists nowadays (art. 24, §1º., of the Law nº 9.610/1998). Thus, it can be stated that the project of law of Pedro Américo constitutes important piece to the history of the copyright in Brazil, even if, as the ones that preceded it, it didn’t take the form of law, it brought to the national scenery important elements to the advancement of the discussion in the theme.

Bibliographical references

AMÉRICO, Pedro. Discurso sobre o Plágio - Proferido a 25 de junho de 1880, em Lyão, perante a Associação dos Dramaturgos. In:  AMÉRICO, Pedro. Alguns Discursos. Florença: Imprensa de l’Arte della Stampa, 1888.

_____. La Science et les Systèmes - Questions d’Histoire et de Philosophie Naturelle. Bruxelas: Gustave Mayolez, 1869.

ANNAES DO PARLAMENTO BRASILEIRO. Câmara dos Srs. Deputados. Quarto anno da décima quinta legislatura. Sessão em 07 de julho de 1875. Tomo III. Rio de Janeiro: Typographia Imperial e Constitucional de J. Villeneuve & C, 1875.

ANNAES DA CAMARA DOS DEPUTADOS. Terceira sessão da primeira Legislatura. Sessões em 12 e 18 de julho de 1893. Volume III. Rio de Janeiro: Imprensa Nacional, 1894.

AUGUSTI, Valéria. Contrafação e Convenção Literária no Brasil do Oitocentos. In: SALES, Germana Maria Araújo; FURTADO, Marlí Tereza; NAZARD, Sérgio David. (Org.). Interpretação do Texto, Leitura do Contexto. Rio de Janeiro: 7 Letras, 2013, v. 1, p. 187-202.

_____. Os Fundamentos da Propriedade Literária por José de Alencar. Todas as Letras - Revista de Língua e Literatura. v. 14, n. 1, 2012, p.

BITTAR, Carlos Alberto. O Poder Legislativo e o Direito de Autor. Revista de Informação Legislativa do Senado Federal. a. 26, n. 101, jan./mar. 1989, p. 135-146.

CARDOSO DE OLIVEIRA, J.M. Pedro Américo, sua Vida e suas Obras. Rio de Janeiro: Imprensa Nacional, 1943.

CARVALHO,  J. M. de. A Formação das Almas: O Imaginário da República no Brasil. São Paulo: Companhia das Letras, 1990.

CAVALCANTI, Ana Maria Tavares. Os embates no meio artístico carioca em 1890 - antecedentes da Reforma da Academia das Belas Artes. 19&20, Rio de Janeiro, v. II, n. 2, abr. 2007. Disponível em: <http://www.dezenovevinte.net/criticas/embate_1890.htm>.

DURAND, José Carlos. Arte, Privilégio e Distinção: Artes Plásticas, Arquitetura e Classe Dirigente no Brasil, 1855/1985. São Paulo: Perspectivas/Editora da Universidade de São Paulo, 1989.

DUQUE ESTRADA, Luiz Gonzaga A Arte Brasileira. Rio de Janeiro: Lombaerts, 1888.

FERREIRA, Tania Maria T. Bessone da Cruz. Direito de propriedade ou propriedade literária: os debates sobre autoria no Brasil Imperial (1862-1889). Trabalho apresentado no I Seminário Brasileiro sobre Livro e História Editorial. Realização: FCRB, UFF/PPGCOM e• UFF/LIHED. 8 a 11 de novembro de 2004. Casa de Rui Barbosa, Rio de Janeiro, Brasil.

_____. Definindo Privilégios: A Questão da Propriedade Literária nas Relações entre Brasil e Portugal (1862-1889). Trabalho apresentado ao NP IV - Produção Editorial, no XXVII Congresso Brasileiro de Ciências da Comunicação, s/d.

FRANCA FILHO, Marcílio Toscano. O Silêncio Eloquente. Coimbra: Almedina, 2008.

MAMEDE, Gladston;  FRANCA FILHO, Marcílio Toscano; RODRIGUES JUNIOR, Otavio Luiz. Direito da Arte. São Paulo: Atlas, 2015.

SOARES, Rogério Guilherme Ehrhardt. Sentido e Limites da Função Legislativa no Estado Contemporâneo. In: s/a. A Feitura das Leis. s/l: s/e, s/d.

TAVARES, Ana Maria Cavalcanti. Os Embates no Meio Artístico Carioca entre 1890-1920: Antecedentes da Reforma da Academia das Belas Artes, disponível em http://www.dezenovevinte.net/criticas/embate-1890.htm

UNION INTERNATIONALE POUR LA PROTECTION DES OEUVRES LITTERAIRES ET ARTISTIQUES. Le Droit d'Auteur: Organe Officiel du Bureau de l'Union Internationale pour la Protection des Oeuvres Littéraires et Artistiques. a. 7, n. 8, p. 109-120, 15 de agosto de 1894.

_____. Le Droit d'Auteur: Organe Officiel du Bureau de l'Union Internationale pour la Protection des Oeuvres Littéraires et Artistiques. a. 6, n. 3, p. 25-36, 15 de março de 1893.

_____. Le Droit d'Auteur: Organe Officiel du Bureau de l'Union Internationale pour la Protection des Oeuvres Littéraires et Artistiques. a. 5, n. 9, p. 105-118, 15 de setembro de 1892.

ZACCARA, Madalena. Pedro Américo de Figueiredo e Mello, um Artista Brasileiro do Século XIX. Recife: Editora da Universidade Federal de Pernambuco, 2011.

______________________________

[1] Professor at the Federal University of Pernambuco (UFPE), where she teaches at the Interinstitutional Program of Post-Graduation in Visual Arts. Graduated in Architecture and Urbanism by the Federal University of Pernambuco (1976) and in Law by the Catholic University of Pernambuco (UNICAP, 1975), Masters (DEA) in History and Civilizations at the Université Toulouse II (1992), France, and doctorate in History of Art, also at the Université Toulouse II (1995), through the CAPES scholarship. Post-Doctorate by the School of Fine Arts of the University of Oporto, Portugal (2014). Member of the National Association of Researchers in Plastic Arts (ANPAP), of the Federation of Brazilian Educators of Art (FAEB) and the Institute of Investigation in Art, Design and Society I2ADS (Porto, Portugal). Leader of the research group “Art, Culture and Memory”. Author of several articles and books

[2] Professor of Brazilian Literature at the Post-Graduation Program of the Federal University of Pará (UFPA). Graduated in Social Sciences through the University of Campinas (1990), Masters in Literary Theory at the State University of Campinas (1998) e doctorate in Theory and Literary History at the State University of Campinas (2006). Post-Doctorate in the Universite de Versailles Saint-Quentin-en-Yvelines, France (2013-2014)

[3] Post-doctor (European University Institute, Florence, 2008, Calouste Gulbenkian Post-Doctoral Fellow), Ph.D. (University of Coimbra, 2006, FCT fellowship), and Master of Laws (UFPB, 1999). Professor at the Universidade Federal da Paraíba (UFPB) Law School and Prosecutor at the Prosecution Office at the Audit Court of Paraíba, Brazil. Member of the International Association of Constitutional Law, member of the International Society of Public Law, member of the Instituto Hispano-Luso-Americano de Derecho Internacional (IHLADI) and President of the Brazilian Branch of the International Law Association. Former student (Gasthörer) at the Free University of Berlin (Germany), visiting trainee at the Court of Justice of the European Communities (Luxembourg), Legal Advisor of the UN Mission in Timor-Leste (UNOTIL) and the World Bank (PFMCBP/Timor). Coordinator of LABIRINT — International Laboratory of Investigations into Transjuridicity (UFPB). The Portuguese version of this text was published in Brazil in 2011. The current version brings minor modifications, carried out after some insightful feedback. English translation by Caio Martino (Universidade Federal da Paraíba)

[4] BITTAR, 1989, p. 137. Traditionally, copyright and privilege are distinct institutions from the legal standpoint. Throughout the history, privilege was a sort of license to print that, for most part, did not even belong to the authors, that only sold their originals to an editing bookseller in exchange of some copies richly decorated. The Law of August 11th of 1872, however, explicitly grans the authors (professors of the newly founded Law course) the mentioned privilege

[5] The text of the law can be consulted in: http://www.planalto.gov.br/ccivil_03/leis/LIM/LIM-11-08-1827.htm

[6] The text of the Code can be consulted in: http://www.planalto.gov.br/ccivil_03/leis/lim/lim-16-12-1830.htm

[7] BITTAR, 1989, p. 139

[8] FERREIRA, s/d, p. 3

[9] BITTAR, 1989, p. 139

[10] Those expeditions needed skilled designers and painters to picture the explored flora, fauna and geography

[11] The doctorate thesis was published under the title "La Science et les Systèmes - Questions d’Histoire et de Philosophie Naturelle" (1869)

[12] ZACCARA, 2011, passim

[13] CARVALHO, 1990. p. 9

[14] Joaquim José da Silva Xavier, Tiradentes, (Pombal-1746 - Rio de Janeiro 1792). The movement named “Inconfidência Mineira” happened in 1789, in the region of Minas Gerais, main producer of gold in Brazil at the time. The revolutionary wanted exemption from the taxes, steep, paid to the Crown. They also wanted the development of the manufactures and an incentive to the agricultural production. That would mean the ending of the commercial monopoly of Portugal and, technically, the Brazilian independency. Tiradentes, condemned to death, was transformed into the first and greatest symbol of the republican ideals

[15] CARVALHO, 1990, p. 141

[16] Museum D. João VI. National School of Fine Arts. Dossier Pedro Américo. Doc. N. 139

[17] Cf. CARDOSO DE OLIVEIRA, 1943, p. 180-181

[18] Known as Lei Saraiva, the electoral reform proposed by Rui Barbosa and publicized in January of 1881, constituted one of the most important measures of the Empire at that decade. In an attempt to fulfill the desires of change, the reform established the direct vote for the legislative elections, ending the elections in two degrees (there was an electoral college) and the restrictive distinction between “voters” and “electorates” that existed until then. In the first degree, the “voters”, citizens with the minimum wage stipulated by law and indicated at each election by a qualification group, voted in those that would, on the second degree, participate as “electorates” of the ballot to the choice of members of legislative assemblies. With the reform, it was established that the individual itself would need to require his electoral enrollment, proving his right through documents demanded in the law. It was thus created the elector title and eliminated the system of list and the naming of “voters” by the qualification group, minimizing the margin for errors and frauds. The minimum wage requirement was kept, but the right to vote was extended to the non-catholics, the naturalized Brazilian and the freeman. Articulated as an instrument of moralization of the electoral process, the Saraiva Law seemed to have reached their goals at that moment, since the Conservative Party, albeit minor, elected an expressive bench of 47 congressmen. With the passing of time, however, the old vices of fraud and the pressure over voters returned, burring the hopes of consolidating the electoral candor

[19] Private Archives of Monsignor Rui Vieira. Areia. Paraíba. Artist Journal. April of 1881. Note about his intention to be a candidate and his request to help to his family. Dated by April 19th of 1881

[20] Private Archives of Monsignor Rui Vieira. Areia. Paraíba. Artist Journal. June of 1881. Copy of the letter sent by Pedro Américo to the chief of the Conservative Party. Written in Florence and dated by June 20th of 1881

[21] Private Archives of Monsignor Rui Vieira. Areia. Paraíba. Letter to the voters of the city f Areia, written in Rome and dated by July 16th of 1881

[22] Private Archives of Monsignor Rui Vieira. Areia. Paraíba. Artist Journal. September 1881. Note made in September 6th of 1881. In it, Américo states having recommended his family to accept the offer of the Liberal Party to introduce him as a candidate

[23] Private Archives of Monsignor Rui Vieira. Areia. Paraíba. Artist Journal. November of 1883. Answer to Daniel Pedro Ferro Cardoso, his childhood friend and study companion in Paris and Belgium. Dated by November 2nd of 1883

[24] Manifest of Pedro Américo to the Brazilian Artists - edited and distributed as a pamphlet, whose reproduction in the local papers at the time is unknown. The journal of the artist transcribed it and it can be (or could be) found in the Regional Museum of Areia (the House of Pedro Américo) in full. It is of note that, since the late 19th century, the legislative work was seen, essentially, as inferring rationally the great universal principles that should govern life in society, therefore only very elevated spirits were apt to “communicate with the stars”, according to the beautiful metaphor of Rogério Soares (SOARES, s/d, p. 436).  Of this vision of the world, resulted the sublime respect that was lent to the legislator, a man knowledgeable enough to, with especial devotion to the truth and rare capacity of enlightened and unbiased thought, reach what was the justice and the Law (SOARES, s/d, p. 436-437). Only the best and the most independent could be legislators - and that would explain, for instance, the presence of scholars such as Honoré de Balzac, Epitácio Pessoa or José de Alencar in the parliament! In this fashion, it was “justified” the censual vote and, in a tautological manner, the supremacy of the law as source of the Law, after all, the law came from a body that sported a position of moral and intellectual superiority in regards to the other agencies of the State and society itself. Note that the supremacy of the law (the juricentrism), as conceived by the French revolutionaries of 1789, did not admit any exception, not even when facing the Constitution, understood then as a political document that lacked normativity (FRANCA FILHO, 2008, p.114).

[25] Private Archives of Monsignor Rui Vieira. Areia. Paraíba. List of the congressment and their addresses

[26] UNION INTERNATIONALE POUR LA PROTECTION DES OEUVRES LITTERAIRES ET ARTISTIQUES, 1892, p. 111

[27] In truth the convention was signed by Tristão de Alencar Araripe, check the news published afterwards in UNION INTERNATIONALE POUR LA PROTECTION DES OEUVRES LITTERAIRES ET ARTISTIQUES, 1893, p. 30

[28] UNION INTERNATIONALE POUR LA PROTECTION DES OEUVRES LITTERAIRES ET ARTISTIQUES, 1892, p. 112

[29] UNION INTERNATIONALE POUR LA PROTECTION DES OEUVRES LITTERAIRES ET ARTISTIQUES, 1894, p. 113. Similar news are found in Le Temps and in Le Figaro, of Paris. In the previous year, a small note in the French newspaper Le Temps, in his edition of September 20th of 1892, already anticipated this failure with express mention about Pedro Américo: “Nous recevons une dépêche de Rio-Janeiro disant que, pour desmotifs supérieurs, le Corps législatif du Brésil ne ratifiera pas, dans la session de cette année, la convention littéraire avec la France. M. Nilo Peçanha, rapporteur de la commission de traités et de diplomatie de la Chambre des députés, aurait même suspendu l'élaboration de son rapport à ce sujet. Il est à rapprocher de cette nouvelle que le Congrès brésilien a été saisi d'un projet de fondation d'un théâtre national, signé de M. Pedro Américo et de vingt autres députés” (Le Temps, a. 42, n. 114, September 20th of 1892, p. 4)

[30] ANNAES, 1893, p. 224

[31] UNION INTERNATIONALE POUR LA PROTECTION DES OEUVRES LITTERAIRES ET ARTISTIQUES, 1894, p. 113

[32] ANNAES, 1893, p. 224

[33] ANNAES, 1893, p. 224. Few days after, in the session of July 18th of 1893, the Congressman Pedro Américo again requests the stand to appeal to the Presidency of the Chamber of Congressmen to put his project to vote (ANNAES, 1893, p. 300)

[34] ANNAES, 1893, p. 224

[35] ANNAES, 1893, p. 225

[36] ANNAES, 1893, p. 28

[37] ANNAES, 1893, p. 225. The current Law nº 9.610/1998 protects explicitly the translation “Art. 7º It is considered works intellectually protected the creations of the spirit, expressed by any means or exposed in any support, tangible or intangible, known or that can be invented in the future, such as: XI - the adaptations, translations and other transformations of original works, introduced as a new intellectual creation”.

[38] ANNAES, 1893, p. 226. Currently, the Brazilian law of copyright regulates in a similar fashion the subject “Art. 37. The acquisition of the original of a work or exemplar, does not grant the purchaser any of the patrimonial rights of the author, save contrary convention between the parties and the cases set in this Law”.

[39] BITTAR, 1989, p. 139

[40] BITTAR, 1989, p. 139. FERREIRA, s/d, p. 3