This was a special appeal brought by Escritório Central de Arrecadação e Distribuição (ECAD) against a ruling of the Court of Justice of the State of São Paulo that ECAD could not enforce copyright collection rights on songs sung by the Brazilian singer Roberto Carlos in his show 'Emotions on the High Seas' performed on a cruise on the Italian-flagged cruise ship Costa Concordia in 2010, on the basis that ECAD had not proved that the show took place within Brazilian territory.

ECAD maintained that it was up to the defendant cruise line to prove that the show took place outside national territorial waters.

Held: Special appeal dismissed.

The ship Costa Concordia, which hosted the event, was Italian-flagged. Therefore, in order to be subject to Brazilian legislation, it is essential that the vessel be in the Brazilian territorial sea, which has not been proven. As the Court below stated, it was up to ECAD 'to demonstrate that the themed show took place within Brazilian maritime limits, which was not done in the present case'. It is worth mentioning that there is no doubt that the singer embarked on the ship, as well as that the ship left Brazil, and that the performance actually took place. However, there is nothing to indicate that the performance did not take place in international waters, in which case the applicable law is Italian law. In effect, the clear conclusion drawn from the appealed judgment is that the plaintiff bears the burden of proving the facts constituting the right it claims.

In the case of a vessel of foreign nationality, the copyright legislation invoked would apply to events that occurred inside the ship only while it was within Brazilian territory. Thus, ECAD's claim to receive financial compensation for copyright would depend on ECAD proving that the vessel was within the limits of the country's territorial sea at the time of the alleged triggering event. In this sense, it appears that the appealed judgment correctly interpreted the rules governing the territorial scope of national jurisdiction and the limits of incidence of civil legislation, with regard to acts occurring inside foreign vessels that are passing along the Brazilian coast.

While transiting the territorial sea, ships are subject, in principle, to the jurisdiction of the coastal State under the rules of international law, notably UNCLOS, which has been ratified by Brazil. On the high seas, the general rule is that ships are subject to the sovereignty of their flag State, whereby they are civilly, criminally, and administratively subordinated to the rules and jurisdictional power of the State of the flag under which they sail. UNCLOS provides that each State has the right to establish the spatial limits of its territorial sea, a strip in which coastal State sovereignty extends - including over the bed, subsoil and respective airspace - up to a maximum of 12 nautical miles, measured from baselines located on the shore and determined in accordance with the Convention.

Within the scope of Brazil's internal legal system, Law No 8,617/1993 established the limits of the territorial sea, the contiguous zone, the exclusive economic zone (EEZ), and the continental shelf, defining the geographical criteria for identifying these zones which extend Brazilian sovereignty, as well as the legal regime applicable to each of these zones. According to art 1 of this Law, 'the Brazilian territorial sea comprises a strip of twelve nautical miles wide, measured from the low tide line of the continental and island coastline, as indicated in large-scale nautical charts officially recognised in Brazil'. And in terms of art 3.3 of this Law, 'Foreign ships in the Brazilian territorial sea will be subject to the regulations established by the Brazilian Government'. It is observed that, in addition to the territorial sea where Brazilian sovereignty is unequivocal, the Law establishes an intermediate range, called a contiguous zone, in which necessary inspection measures can also be adopted to avoid and repress violations of customs, tax, immigration, or sanitary regulations. It also provides for a different regime for the EEZ, aimed at activities related to fishing, environmental pollution, scientific research, and economic exploration of the continental shelf.

In the special appeal under consideration, as it is uncontroversial that Roberto Carlos' performances took place on a foreign ship, it would only be viable to accept ECAD's claim if it is proven that the triggering events occurred within Brazilian maritime boundaries, more specifically in the territorial sea, given the limits to the spatial areas of jurisdiction, legislation, and national sovereignty itself. Therefore, the understanding of the Court below regarding this preliminary legal issue appears to be correct.