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    Brazil Takes Steps Aimed At More Balanced IP Rights

    Published on 13 December 2013 @ 6:19 pm

    By , Intellectual Property Watch

    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 wnew@ip-watch.ch.

     

    Comments

    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. Cláudio Lins de Vasconcelos 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.


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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