* Mauricio Cozer Dias
The intellectual property legislation in Brazil, like in many other developing countries, is good, but its enforcement is weak.
All context of piracy in Brazil is more linked with the consumption of culture or technology than with the intellectual property production. As an example we can see the consumption of CD’s and DVD’s of foreign musics and American movies.
New copyright criminal law was changed recently, with the nº 10.695/2003 federal act which changed the article 184 of the Penal Code and the articles of the Penal Procedure Code. These legal changes gave more power to the police authorities and district attorneys to prosecute the defendants of piracy increasing penalties.
For an efficient combat it is necessary to attack three main points: production; commerce and consumption, what doesn’t happen now.
Official and Collective Management Entities enforcement have been focused on only two points of piracy: production and commerce. But they did not strike the customers who buy and use these products.
They also commit another criminal conduct called ‘receiving stolen goods’, typed on the article 180 of the Brazilian Penal Code, as fence.
As long as the customer fence are not going to be prosecuted, it is an open and profitable market to be explored by the industry of piracy which will take chances against the legal system.
It is very important to strike piracy in Brazil to combat these three points: production, commerce and consumption.
Doing that way Brazilian’s authorities may have much better results against piracy, showing our compromise, with the intellectual property rules and a trustworth enforcement system.
Understanding Piracy in Brazil 2: ‘Trade Marks and Patents’ Piracy’
Trade Marks and Patents’ piracy in Brazil is ruled by the nº 9.279/1996 federal act, which is also called industrial property law, with the Penal Code and the Procedure Penal Code.
The main problem of the piracy’s combat in this area is linked with type of criminal action, the private criminal action. This kind of criminal action depends very much on the plaintiffs or their collective management entities, which start the policy procedures and the criminal process.
The district attorneys do not play a significant role in this type of criminal action. Furthermore the penalties are very weak, from one month to one year of detention penalty in a half-open system.
These lengths of penalties are consider “small causes” by another procedure Brazilian law, the nº 9.099/1995 federal act, also called ‘special judgeship law”, which gave a different treatment to defendants. But the intellectual property is not a little cause or a little problem, turning easier of production, commerce and consumption of counterfeiting products.
It is necessary a complete review concerning the length of penalties also increasing them like the copyright penalties (1 to 3 years) of confinement system or closed system. And a legal change of the criminal action type, turn to a public criminal action, which will give more power to the district attorneys and a better official enforcement.
Doing that legal changes, following the copyright penalties and the public criminal action, the government will standardize the intellectual property criminal legislation in Brazil.
Another important point to improve official law enforcement is to create an intellectual property special court by specifying the apllication of the law as ruled in the 241 article of the industrial property law. This point was not observer until today which may help in the judicial law enforcement.
The standardization of the criminal intellectual property legislation with the creation of the special courts will certainly improve the official enforcement and reduce piracy to normal levels.
Maurício Cozer Dias – Msc in Intellectual Property and Enterprise Law. Attorney at law in the copyright and related rights since 1998. Winner of the National Contest in Copyright from the Brazilian Ministry of Culture