GIPLI verwelkomt dra. Luíza Resende Guimarães als gastonderzoeker

GIPLI is extreem trots om mevrouw Luíza Resende Guimarães van september 2025 tot januari 2026 te mogen ontvangen als externe bezoeker. Tijdens haar verblijf aan de Faculteit Recht en Criminologie van Universiteit Gent zal Luíza onderzoek voeren onder de begeleiding van prof. dr. Simon Geiregat. Haar verblijf is mogelijk dankzij een zeer competitieve beurs van CAPES, dat onderdeel uitmaakt van het ministerie van onderwijs van de Braziliaanse overheid. Luíza blijft dan ook verbonden aan haar thuisinstelling, de Universidade Federal de Minas Gerais (UFMG), waar ze een doctoraat voorbereidt onder de begeleiding van prof. dr. Mariana Alves Lara.

Luíza behaalde in 2018 haar diploma in de rechten aan de Universidade Federal de Lavras, waar ze later aan de slag ging als vervangend lesgever in burgerlijk recht (2022–2023). Ze behaalde haar diploma van master in de rechten aan UFMG in 2021. In dat kader ontwikkelde ze een rechtsvergelijkende studie met privaatrechtelijke inslag die haar interesses in het domein verder aanwakkerde.

Tijdens haar verblijf aan Universiteit Gent werkt Luíza verder aan haar doctoraal proefschrift rond het controversiële onderwerp van de (on)geldigheid van contracten met ghostwriters: een wereldwijd en steeds vaker voorkomend fenomeen dat zich moeilijk verdraagt met de onoverdraagbare en niet voor afstand vatbare aard van de morele rechten van auteurs — eigenschappen die gewoonlijk met deze rechten worden geassocieerd in landen met een continentale privaatrechtelijke traditie. Luíza interesseert zich niet enkel in de intellectuele rechten en in rechtsvergelijking, maar heeft ook een bredere interesse in diverse privaatrechtelijke topics, zoals in kwesties rond rechtspersoonlijkheid, persoonlijkheidsrechten en het bredere contractenrecht.

Haar doctoraatsonderzoek

Authorship commerce and the doom of the shadows — The legal framework of ghostwriting in Brazil

The phenomenon of authorship commerce is establishing and expanding internationally within the publishing market. It occurs mainly through the practice known as ghostwriting, which involves hiring a person who writes a piece of work for someone else, who is credited as the author. In exchange for a predetermined monetary payment, the ghostwriter signs a contract, usually renouncing all aspects of the rights of the author, agreeing not to reveal that they are the true intellectual creator of the work, under the threat of having to pay substantial fines for the breach of confidentiality.

Despite having become increasingly professionalized and widespread in recent decades, this practice is not recent: one of the first known litigations on the matter involved the world-renowned Alexandre Dumas – author of literary classics such as The Three Musketeers and The Count of Monte Cristo. The case, brought before the Paris Court in the 1850s, revolved around the concealment – allegedly agreed upon by the parties – of a co-author named Auguste Marquet. At the time, it was decided that the author’s name could be subject to all types of stipulations, including its omission, provided that such an agreement had been made.

Given the recent dissemination of the phenomenon, observed both nationally and internationally, the proposed research assesses whether the alienation of the moral rights of the author — through the practice of ghostwriting contracts — is admissible under Brazilian law. The issue arises particularly because, considering they are taken as personal rights, their alienation and/or renunciation might face obstacles under Article 11 of the Brazilian Civil Code, which states that “except in cases provided by the law, personal rights are non-transferable and non-renounceable, and their exercise cannot suffer voluntary limitation”; and more specifically because Article 27 of the Brazilian Copyright Act describes the moral rights of the author as inalienable and non-renounceable.

This prohibition has not always existed in Brazil, though: Article 667 of the previous Civil Code of 1916 expressly allowed the transfer of the rights of the author, without excluding the personal aspects from the transaction. The shift in the Brazilian Copyright Act– that now particularly protects the moral rights of the author – was deeply influenced by European legal systems.

The influence exerted on the regulation of the rights of the author in Brazil can be perceived mainly through the legal systems of France and Germany. This is because the concept of moral rights of the author was primarily developed in French doctrine and judicial precedents, around the 18^th and 19^th centuries, and the theoretical framework existing at the time in Germany also played a fundamental role in their consolidation. The core idea is that the rights of the author are more than just property rights they also include aspects related to human personality, that should receive special protection. Authors such as Immanuel Kant and Johann Gottlieb Fichte were very important in the development of this conception. The recognition of the moral rights of the author gave rise to the tradition known as droit d’auteur, which established itself within civil law systems, such as those of Brazil and Belgium.

In parallel, another tradition concerning the rights of the author, the copyright doctrine, was being developed in England, and later found fertile ground in the United States and in other common law systems. Its focus is not on the protection of the author, but of the work itself. For this reason, there is no emphasis on moral rights. As a natural consequence, in countries aligned with the copyright tradition, the alienation of authorship through ghostwriting contracts is more easily accepted. These two doctrines represent distinct approaches: droit d’auteur creates an ethical bond between the author and the work through the notion of moral rights; while copyright focuses exclusively on the economic and commercial aspects related to the reproduction of works.

Throughout history, these two traditions have clashed in their efforts to expand their influence, especially over international treaties dealing with the rights of the author. Among them, one of the most relevant is the Berne Convention of 1886. It is still in effect today, and it expressly guarantees the protection of the moral rights of the author. The conflict between copyright and droit d’auteur spans the entire international regulation on the topic, with both systems consistently seeking to exclude or maintain – respectively – the protection of the moral rights of the author within the scope of international law.

At first sight, a preliminary reading of Brazilian legislation might suggest an absolute prohibition on the alienation of the moral rights of the author in Brazil and, consequently, on the practice of ghostwriting. However, I maintain that an adequate understanding of the issue involves nuances and more complex discussions. Regarding Article 11 of the Civil Code, there is a certain consensus among national doctrines that a literal interpretation could lead to undesirable and even dangerous conclusions for human autonomy and freedom; binding people to their rights. Therefore, it is crucial to differentiate between renunciation of personal rights and renunciation of the exercise of such rights, with the latter being considered permissible, as proposed by Brazilian jurist João Baptista Villela (2005). In the research, the idea is that this reasoning should be extended to Article 27 of the Copyright Act.

The research hypothesis is that ghostwriting contracts constitute a renunciation of the exercise of the right and, therefore, ghostwriting could be permissible under Brazilian law. Nonetheless, the true author must have the possibility to revoke their renunciation at any time, even though this may open the door for contractual liability claims. This is not the prevailing view in Brazilian scholarly literature. In fact, research on the phenomenon of ghostwriting is still scarce and the few authors who address the issue rely solely on the text of Article 27 of the Copyright Act, arguing that ghostwriting contracts are void. However, this has not prevented the practice from becoming widespread in the national publishing market or, to add even further to this complicated scenario, the courts from dismissing the claims of ghostwriters who allege violations of their moral rights, arguing that they signed contracts in which they were aware they would not be credited as the creators of the work.

Other problems and challenges to be addressed in the research are: (i) presenting the development of the historical dispute between droit d’auteur and copyright, that has helped to shape the discipline of the rights of the author around the world, focusing on the influence exerted in Brazil; (ii) analyzing and comparing the recent position of doctrine and case law regarding the issue of ghostwriting in international legal systems that follow either the copyright tradition or the droit d’auteur tradition; (iii) discussing the minimum level of creativity required for someone to be considered the author of an intellectual work; (iv) investigating, in case of an illicit act — such as plagiarism, defamation, invasion of privacy, etc. — who should be held liable: the ghostwriter or the person credited as the author; (v) assessing the consumer-law implications of ghostwriting, as the public may feel deceived by the false attribution of authorship; and (vi) examining whether, once the true creator of the work is revealed, they are entitled to part of the economic gains obtained from the publication and to all the moral rights.

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