Brazil Takes Steps Aimed At More Balanced IP Rights

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As of today, the Brazilian Patent Office has a new president: Otávio Brandelli, according to an official announcement. Also today, the nation’s new amendment on collective management went into effect.

The announcement is available here.

According to Allan Rocha de Souza, a copyright and cultural policy professor at the Federal University of Rio de Janeiro, Brandelli is a career diplomat with a history for promoting a “balanced” perspective between different stakeholders.

This makes him unlike the prior president, Jorge Ávila, who was known in the broader intellectual property community as “promoting and enacting a maximalist view of patent rights, in spite of the relevant public interest involved,” Rocha de Souza said.

The decision by government regarding the head of the Brazilian Institute for Intellectual Property (INPI) also signals that Brazilian internal and foreign policies on patents will finally be bridged, as Brandelli comes from the foreign affairs side, he said.

Meanwhile, on the copyright front, today is also a special day, both for creators (musicians and artists) and users alike, he said.

The Brazilian copyright law (Law n. 9610⁄98) was amended (Law n. 12.853⁄13) in July 2013 to make the collective management chapter come into force today.

Since its approval in the Congress and signing into law by the presidency, the associations grouped under the Collective Management Organisation (CMO) have brought a case to the Supreme Court arguing for its unconstitutionality. The primary argument is that the law allows for state intervention on private matters, and that is not constitutionally possible.

The Court decided not to impose an injunction suspending its effect, so the amendment is in force as of now.

The Folha de São Paulo newspaper has had a piece on the issue today, showing some of the conflicts and debates over the theme.

The main change introduced by the amendment is the creation of a supervising body – after more than 20 years of unregulated activity – with mediation and arbitration powers to be regulated by a Federal Decree.

Other changes include the submission of the CMO and its associations to the antitrust regulations, the limitation of terms for the directors’ boards, as well as a limitation on who is eligible for such positions (only original right-holders from now on).

An unofficial and preliminary English version of the amendment is available here [doc].

William New may be reached at

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  1. Benny Spiewak says

    The article mentions a “broader IP community”. It should clarify that such a community is mostly formed by anti-IP folks. Those guys really did not like Ávila, as he observed TRIPS and the rule of Law.

    Most of all, President Ávila was (and continues to be) passionated about IP and saw (and let us hope he will continue to see) Brazil as a country that should benefit from its potential in both the creative and innovative industries. He worked hard to develop a Patent Office that would better fit an emerging economy like Brazil.

    A Patent Office is simply that. It is not and must not become another pseudo social Policy Office, as the anti-IP crowd wants simply for sake of testing academic thesis, which (let us not forget) are mostly funded by Public money.

  2. says

    In the end, it is just a new chapter in the (at least) half-a-century old debate between those who think global IP standards favor developed countries only and those who think that such standards favor developed and developing countries alike.

    Brandelli is a talented diplomat who believe in the first statement. He is not alone and is hardly the first one to adopt this view, which was famous during the 70s, when Brazil and other developing countries used to have a clearly lenient policy concerning IP protection, notably for foreigners, thanks to the influence of Raul Prebisch and Celso Furtado’s structuralist school.

    Many countries – the U.S.A and Japan included – did the same in other moments of history. A more recent example: China was “the” piracy paradise a couple decades ago and now is the world’s number one patent applicant. In Brazil, however, the “free-ride” strategy never worked. All these countries knew they could not avoid international pressure forever and have seized the “lenience window” to create objective conditions for domestic innovation, by investing in things like education, for example, something Brazil has never – seriously, I said never – did.

    Instead, Brazil has historically preferred to protect inefficient local producers, private or state-owned, against foreign competition. Strong IP standards do not automatically foster innovation, as weak IP standards also do not, but in the current configuration of capitalism – where production, and not only consumption, is globalized – weak IP protection means only technological leftovers will be produced in Brazil.

    Good for New York Middletown’s gadget shop owners, who will continue to have Brazilian tourists buying like crazy the things they cannot find in Brazil at a reasonable price. Behaving like a poor country, playing the “victim of the system” role, is the safest way to keep being one.

  3. Allan Rocha de Souza says

    The IP Broader community mentioned in the article refer clearly to all that are not “IP Worshipers” or the professionals that serve them, and includes all that care for a balanced IP system – as the international IP treaties are bound to be interpreted as, when not viciously misguided by the worshippers.

    It is also interesting to note that the qualification (representing well the IP ideologues worldview) of any proposal for or move toward a balanced IP – which, by the way, is constitutionally mandatory – as anti-IP. This is not much different than the extremist religious groups that abound in the XXIst Century, and it is certainly something to take note of and watch out for.

    Finally, it is exactly because most of the research – anywhere in the world – are publicly funded that its results must be also in the commons domain, as, for the same reasons, should public institutions (like INPI)make sure the public interest is fully projected and represented, specially to avoid the organization from becoming an extension of the private interest groups.

    The former INPI president may be passionate for IP, and a likely part of the IP worshipper’s religion, and that in itself should be enough not to have him run public institutions that must implement balanced policies.

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