Missing the movie theater…
One of the most traditional leisure activities, going to the movie theater, is being affected worldwide by the Covid-19 pandemic.
Although movie theaters in Brazil are currently closed, issues involving the “big screen” are still being discussed in the legal world.
On March 18, the Brazilian Supreme Court (STF) decided on the constitutionality of provisions of Provisional Measure No. 2,228/2001 commonly called “screen quota”, which imposes the display of a minimum of national content in theaters in the country.
It is worth recalling that the first Brazilian legislation ruling the topic (Decree 21,240) was enacted in 1932, with the purpose of nationalizing the censorship service of cinematographic films. In 1939, Decree-Law 1,949 obliged movie theaters to show at least one national film (feature film with opening). Between 1950 and 1959, it was mandatory to show at least 6 national films per year.
In 1959, the minimum quota started to be stipulated by proportionality, that is, considering the number of days per year instead of the number of movies. Until 1963, Brazilian movies should be displayed 42 days per year and as of 1963, the quota established was 56 days per year, which doubled in the following year.
Until 2001, the share of screening of national films suffered several changes. In that year, Provisional Measure 2,228 determined that the “screen quota” would be defined annually by presidential decree and also set penalties for non-compliance with the minimum content requirements.
According to the Union of Cinematographic Exhibiting Companies of the State of Rio Grande Do Sul – who filed the unconstitutionality claim -, such provisions are contrary to the Brazilian Constitution, since they violate the principle of free initiative and represent an interference of the State on the economic activity of private companies.
In short, the Union intended to demonstrate that restrictions on private activities which are not public concessions are not appropriate and violate basic constitutional precepts.
Notwithstanding, the Supreme Court considered the provisions that reserve a minimum number of days for the exhibition of national films in Brazilian movie theaters (screen quota) as constitutional.
According to the General Attorney Augusto Aras:
“There is no use (…) a significant expansion of the creation and production of national movies if there is no market in the consumer chain that is sensitive to the artistic product of Brazilian directors. (…) the Brazilian public is not even aware of the existence and availability of the national film. In appreciation of the constitutional duty to promote the repercussion of the national cultural production, the State employs an activity that the classical administrative doctrine calls foment”.
In line with such arguments, the Court established the following general repercussion thesis (topic 704):
“The screen quota is constitutional, consisting of the mandatory exhibition of national films in Brazilian movie theaters, as well as the administrative sanctions resulting from their non-compliance” – vote by Reporting Min. Dias Toffoli.
STF’s thesis is based on the fact that the Court considers the rules as a mechanism that protects the national audiovisual industry and expands access to culture. This thesis, from now on, will serve to guide decisions of other courts in the country in relation to the topic.
In any case, regardless of whether national or foreign film are released, we will continue missing the movies as long as the effects of the pandemic persist.