Marca Maxmeio

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  • 28 de Agosto de 2002

    PROTECTION TO THE COPYRIGHT IN BRAZIL

                As all know, in the legal picture of Brazil contemporary, the main law on copyright is Law 9.279 from May 14th 1996, known as Law of Patents. It corresponds in the truth to a new Code of industrial property, that substitutes the Law of 1971, and establishes the new rules for protection of inventions (patent), models of utilities, industrial drawing, geographic marks and indications. It defines the time of protection of each one of these classrooms; it regulates the voluntary and obligatory license; the rights of the used employers and; the technology transfer; the register in the INPI; the unfair competition and the administrative sactions and criminal.

    NATIONAL SEMINARY AGAINST PIRACY
     AND CONTRABAND: A CITIZENSHIP PROPOSAL

     * August 28th , 2002
    Audience of the National Confederation of Industry - CNI

    SUBJECT:
    PROTECTION TO THE COPYRIGHT IN BRAZIL
     - NECESSARY INSTITUCIONAL ARRANGEMENTS

    Palestrante - Member of the house of representatives NEY LOPES (PFL/RN), President of the Commission of Constitution and Justice and Writing of the House of representatives; Reporter of Industrial’s Law Property in the House of representatives; Periodic President of the Latin American Parliament (PARLATINO); Vice-president of the Mixing Commission of the MERCOSUL of the National Congress.

                As all know, in the legal picture of Brazil contemporary, the main law on copyright is Law 9.279 from May 14th 1996, known as Law of Patents. It corresponds in the truth to a new Code of industrial property, that substitutes the Law of 1971, and establishes the new rules for protection of inventions (patent), models of utilities, industrial drawing, geographic marks and indications. It defines the time of protection of each one of these classrooms; it regulates the voluntary and obligatory license; the rights of the used employers and; the technology transfer; the register in the INPI; the unfair competition and the administrative sactions and criminal.

    The 9.279/96 law is fit perfectly in the parameters of TRIPS, one of the agreements of the Rodada Uruguay which origin the new international system of the commerce, headed for the OMC. In this aspect, valley to remember that one of the main changes in this new legislation in relation to the previous one is that modified derivative of the command of the TRIPS that it could not have exclusion subject’s privilege, or either, in ours case that it were extend to protect for medicines, chemical products, leagues metallic and Microorganisms.

    After the Law of Patents, the Government published Decree 2.553, on April 16th 1998, that it disciplines some articles of the Law and establishes norms on patents of interest for national defense and incentives for public servers who create inventions.

    On October 6th 1999 Decree 3.201 was edited, that it regulates the concession of obligatory license in case of national emergency and public interest. However, more important it was the Transitory Measure 2.014, published initially in December of 1999, that it defined a handling of transition to adjust the new copyrights (medicines and chemistries) for the system of the TRIPS. It had a problem due to the fact that the new Law of Patents entered in vigor before the international agreement.

    Besides the patents, and came later chronologic, they are other important legislation in the area of copyright. The first one was Law 9.456, from April 25th 1997, that regulates the protection of vegetal varieties (to cultivate). It defines the requirements so that a variety can be protect, the protection time (15 or 18 years), the procedures for voluntary and obligatory licenses, the rights of the used employers and employees. The law also creates the Serviço Nacional de Proteção de Cultivares. This law was regulated by Decree 2.366, from November 5th 1997.

    In February 19th 1998 two laws on copyright had been edited. Law 9.609, that it regulates the copyrights on computer programs (software), determines the time of protection for 50 years, the optional register, the rights of employers and employees, with vanity for the employer, discipline the moral and patrimonial rights, the voluntary guarantees of the users, licenses, royalties and license contracts, technology transfer, the administrative sanctions and criminal. The law was regulated by Decree 2.556, from April 20th 1998, which basically focused the optional register in the INPI, detailing the aspect on the secret of the program’s parts that they must identify definitive protecting program.

    The law 9.610, also from February 19th 1998, substitutes the previous legislation of copyrights. It establishes the target of the protection, the optional official register, the protection stated period (70 years), disciplines the transference of rights, connected rights (of interpreters and producers), the right of assembly and the administrative sanctions. The regulate Decree of this law, nº 2.894, from December 22nd of 1998, created a special stamp, printed matter for the Secretaria da Receita Federal, as instrument of control for the payment of copyrights on the audiovisual works.

    A last legislative reference in the field of the copyright refers it Transitory Measure 2.186, from August 2001, published for the first time in June of 2000, the one I was indicated Relator in the National Congress. Or badly this is the current Brazilian regulation, and disciplines important parts of the Convention well on Biological Diversity. In relation to the subject of this presentation, this legislation has two interfaces: first, it relates to the command of the Convention for the distribution of the happened benefits of using biodiversity. It enters these benefits to be share, patents and other rights from intellectual’s propriety are most significant. In according to place, it establishes the general strings for protection the traditional knowledge to biodiversity, what in the end configured as suigeneris species of copyrights. This subject has raised quarrels heated in the whole world, a time that it still does not have a finished model, mainly satisfactory for all, of this type of protection. The Transitory Measure, incipient in this subject, recognizes the rights of the aboriginal populations and communities’ traditional knowledge, define the participation in the agreements for use these knowledge and the possibility of register (not binding) these knowledge. As relator of this subject, I defend the creation of incentive’s mechanism for the private sector to access the biodiversity for research ends, through the stimulation for partnerships with groups of scientists and Brazilian’s researchers. It would be a kind of a "risk contract", which giving positive resulted in the research, would be share all the knowledge between the parts, in the form of the stipulated one in specific contract.

    Beyond these legislative parts in vigor, that configure the new paradigm of the copyright’s system in Brazil, in accordance with the approach of TRIPS and the dominant economic policies, some designs of law on this subject continue to move in the Congress, and with certainty they will be focus of attention of the new legislature that will be initiated in 2003 to perfect this legal sketch all of the subject of copyright.

    In the international plan, I would like to stand out some trends, which result in the more important changes and that lead the national changes.

    First and clearly movement is in relation to the protection of the copyright on the Net. Subjects as the relation between marks and dominion on the Net, control on the circulation intellectual and artistic workmanships, responsibility of the suppliers and the sensible question on authority’s conflict are now in quarrel.

    Some aspects of the TRIPS also are object currently of quarrels for possible reviews through and complementation. Matters that specifically demand this boarding are the geographic indications, in Article 24.2 of TRIPS, and the protection of well-known marks, in Article 16 from TRIPS and Article 6-bis from Paris’ Convention.

    Another trend in the international panorama is the demand of some sectors for the protection of databases, in view of the substantial investments in its elaboration.

    Finally, in this fast survey of the institutional picture, we must reiterate the question on the copyrights of life forms, subject that were deliberated to be submitted to a walk through five years after the input in vigor of the OMC. More specifically, the rights of microorganisms and the creation of a sui generis system for the protection of plants and animals, at the very least, in accordance with the Article 27.3.b of TRIPS. A great debate is assayed on the subject. Many waited that it would have one strong battle between the countries that try to extend the rights for beyond the modified microorganisms and those that want limited it, however, in the reality, so far, the agenda of the economic crises has supplanted this quarrel and no serious decision was taken until the moment. In the next legislature the Brazilian National Congress, without a doubt, this subject will be with priority.

    This is the scene where public politics’ creators and the legislators work to define the necessary to improvement the protection’s system to the industrial property in Brazil.

    Now approaching matters that are being placed in the order of the day most immediate, I believe that Brazil must take a more defensive position and look for, with due good sense, to raise the against-arguments technician and politicians that they are to deserve attention, before eventual adoption extreme measured.

    I place myself with the defenders of a modern copyright protection’s system, efficient and fair. We can not incriminate a country for attitudes that many times are created and fomented outside of our borders and exactly stimulated by technological advances of manufacture of CD’s, DVD’s and eletronic games copies invented for the same groups cannot, however, complain of its use.

    I mention recent accusations of special tax of CD's copies, electronic films and games to it in the developing countries, specially in Brazil. Without recognize and to condemn the illicit character of such activities, duly fit in the legislation of copyright in the Country, only relief that the "technological array" of such practical they would have duly also to be analyzed and to be fit legally for distribution of responsibilities or, at least, some type of control.

    Another matter if to consider at this moment is the path of construction of the Área de Livre Comércio das Américas - Alca- with inevitable unfoldings politicians and resonance in the National Congress. As it could not left it out, one is about a difficult, complex negotiation, involving more than thirty countries, and between them the most powerful of the world - USA. The negotiations pass for periods of peaks and depressions, depend on the local economic crises and the pressures of the strongest sectors in each country. Not enough, one was constructed negotiation’s sketch, had stipulated periods, had adopted strategies and good or badly the plan of continental integration persists. Without entering in the merit of this initiative, Pretty good in many aspects, I want to register here the exaltation the copyright’s path in this agenda, perhaps as a form of economic’s pressure agents located in the countries trunks for imposition of unilateral models of regulation. The ALCA, in case that implanted, must be a general concert between the countries of Americas, that the adoption of common politics in all includes the sectors of the social-economic regulation. It cannot accept the use of his negotiating base, already sufficiently harmed for the conjunctural aspects of the politics economic’s crises and, for the anomalous streght of only some sectors and harming the course of a harmonic negotiation. I consider that this shunting line must be fought, since already, and that the conduction of the sub-group of copyright must be fit in the collective’s rules of the implementation of the Area without overlapping it excessively and coercitive attitudes of legal foundation, without previous quarrel.

    These are the matters that I would like to remember in this brief boarding on the institutional picture to the copyright’s protection, as much in that say respect to the legal panorama in Brazil as in relation to the possible unfoldings and critical matters of the subject here and in the international plan.

    CONCLUSIONS

    In summary I attend to the subject of this lecture about the institutional arrangement of the copyright’s area, I believe that the efforts of all the paths that have responsibility with the subject - legislators, researchers, industrials, consumers and government - will be involved of some form with the quarrel and formularization of the following matters:

    1. Improvement of the laws and politics of combat to the piracy. As much the legal instruments as the actions of government need to produce better resulted in the fight against the delicts in the area of the copyright.

    It enters the suggestions in debate, includes it to use with more severity the Consumer Law Defense, at the same time it would reduce the punishments by confinement for some kind of criminal acts.

    2. Legislation’s improvement about "secret business", with possible approval of new law on the subject. This subject, however, is politically complex and will exist, with certainty, innumerable difficulties to be surpassed for its boarding in the next Legislature. It has to consider the possibility of unfolding of the article of the Law of Patents relative to the protection of the industrial secret in a new separate law, in order to propitiate it more effectiveness, in view of the evaluation that if makes today, that such tool has been used in Brazil and that it has potential to become more adequate the appropriation of the invention’s benefit.

    3. Definition of the system sui-generis of protection to the traditional knowledge associates to the genetic features. In this area, the challenge is to all construct this new chapter of the copyright, destined to protect the ancestral knowledge of the traditional populations, that have assisted excessively the creation of new products, medicines basically. The great question is if the regulation of the benefits given to the native populations must be regulated by specific contracts, or if the law must regulate them and the Government to control. As reporter of the subject I reflected very much, that is sufficiently sensible and innovative and will require the convergence of all the sectors for its consolidation, in view of its interface with historical problems of the aboriginal cultures’ preservation.

    Thus exactly, I believe that if it is not distant of a consensus for the institutional justification of the activities of etnobioprospection.

    4. that are developed in the Country.

    5. Creation of legislation and incentives’ politics to the use of the copyright as instrument of scientific and technological development. As much the federal level as state implants designs and initiatives of creators’ aggregation, of research entities, of industries, all with the objective to spread the rules of the copyright as instrument of economic and social development. These initiatives must be stimulated by the Government, through intelligent norms that all allow its broadcasting in Brazil.

    6, Definition of legal regimen for the copyright on the Net and improvement of the protection of softwares". The new world of the instantaneous communication and the new virtual spaces, urgently requires the definition of a legal landmark on copyright. Matters on the subject have been developed in many countries and the international organizations with obligator consequence in the national scene.

    These are the matters, in a sufficiently summary boarding, that – from my matter of view – composes the agenda of the rearrangements of the copyright in Brazil. In some of them, the National Congress already discuss proposals; in others, the private initiative and the Government are more advanced, having, as it is natural, to be also led to the quarrel of the Legislative. The important one is that each actor can contribute for the implementation of these measures, more quickly possible. After all, the challenge of the combat to the piracy and contraband are so basic, as was for Brazil to conquer significant advances in the protection to the copyright. It would not care to protect the invention, that it is the most intelligence expressive of manifestation, if we will not have an effective law that give us an efficient and instantaneous way to fight the copy, the piracy, the contraband, that are crimes against the country and, over all, against the human being creativity and beneficial effect from the decurent economic plans, social and politician. ENOUGH to the piracy and to the contraband it is the permanent motto, of who desires to fortify Brazil in the overcoming of the action scene difficulties.