Por uma justificação constitucional do direito de autor: da hermenêutica aos direitos fundamentais

Abstract

From the central thematic axis, copyright, it is proposed an ethic-philosophical incursion in its epistemological tradition, and the unveiling of the crisis of its traditional reasons, with a view to ascertain to what extent the hermeneutic-philosophical perspective possesses epistemological conditions to serve as the structuring element for the construction of a constitutional justification for copyright, affected to the promotion of fundamental social rights, mainly culture and education. Based on the hermeneutical methodological bases that comes with the linguistic turn, in addition to a dialogical theoretical approach, the research techniques used are essentially bibliographical review, including foreign law, legislative research, and, also, collection of jurisprudence and analysis of jurisprudential arguments. In the end, it is concluded that the traditional reasons (theories) of intellectual property are insufficient to justify the existence of copyright, and that the gap of a genuine justification ends up feeding the sense of crisis and mismatch within the Information Society, notably the Internet and its new communication architecture. Furthermore, philosophical hermeneutics, in fact, reveals essential elements that allow a critical argument to the epistemological tradition of copyright, as well as the paving of the path towards the desired constitutional justification, in order to reposition copyright as the promoter of fundamental social rights, mainly culture and education; beyond the sterile role it has played in (and for) contemporary society.