O instituto da função social como instrumento de efetivação do princípio constitucional da solidariedade no direito de autor na perspectiva do constitucionalismo contemporâneo.

Abstract

The research described below points at one main question: Do institutionalized social functions work towards giving practical applicability to the constitutional principle of solidarity when it is applied to property rights? Aiming at reaching this main goal, we developed a bibliographic research based on indirect documentation along with a jurisprudential investigation.Thus, a recognized literature review- performed through the analysis of publications such as articles, magazines and books – supported this research in each one the topics explored during it performance.The approach method used here was the hypothetical-deductive one, because, from two opposing hypotheses, one was sought to be confirmed as true.The development of this study may be explained by several reasons, among which we can highlight the imperiousness of a new Private Law reading, that reborn from the constitutional process, which has come to be interpreted and applied in the light of principles such as solidarity. This way, it was relevant checking out how such principles may have focused on private rules,and, then, make it effective the necessary harmony between the Public and Private Laws. This study worked in line with information proposed by the research field "Contemporary ―Constitutionalism‖ proposed by the Master and PhD programs of the University of Santa Cruz do Sul – RS. This research line aims at understanding constitutional phenomena as a whole. In order to reach such goal, we first analyzed the contemporary Brazilian Legal System to understand to which extent private rules—where property rights are inserted in – receive constitutional inflows.Secondly, the study approached Human Rights. This was performed to have an idea about their importance internationally and inside the Brazilian context.The human rights approach made it possible to ignite a study on the principles of solidarity, checking its background and applicability. Lastly, different property rights were analyzed in the final stage of the research.These rights were acclimatized according to the reality that currently puts them face a number of challenges, such as the growing demand for access to information, culture and education and the ease of access to intellectual work enabled by virtual means.The final step of this research evaluated the institutionalizing process of social functions as path for the application of principles related to solidarity to property rights. And, the fact that the research has reached the conclusion that institutionalized social functions work towards implementing the constitutional principle of solidarity made our study reach its initial goal.Property rights, respecting their hybrid profile (moral and property) does not distance itself from the application of institutionalized social functions. This way, although it is not the only tool for achieving the principle of solidarity, institutionalized social functions, when applied to property rights, seem to focus on the line of the law allowing the right to the substance contained in the principle of solidarity as in which this Institute operates as an embodiment tool of author's property rights in consonance with the fundamental rights which, together, safeguard and make up the major principles of human dignity.