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UK IPO guidance on general IP rights in Brazil

UK intellectual property office has published short and usuful guidance on Intellectual property rights in Brazil. In Brazil, Intellectual Property Rights (“IPRs”) can be generally classified in three main groups: Industrial Property, Copyright and Related Rights and sui generis IPRs.

Industrial Property includes patents, trade marks, industrial designs, geographical indications and nonpatentable knowledge (e.g., know-how, trade secrets). It is regulated mainly by Federal Law No. 9.279/96 (the Intellectual Property Law, or by the Portuguese acronym, “LPI”) The Brazilian Industrial Property Institute (the “INPI”) is the Brazilian Patent and Trade mark Office and is an autonomous federal agency under the Ministry of Development, Industry and Commerce. The INPI is responsible for implementing rules regulating industrial property, as well as for granting and registering patents (i.e., inventions and utility models), industrial designs, trade marks, geographical indications, software and at times technology transfer contracts.

Copyright protection is granted for texts of literary, scientific or artistic works, musical compositions, audiovisual works, drawings, paintings, and photographic works. It is regulated mainly by Federal Law No. 9.610/98 (the “Copyright Law”). Neighbouring or related rights are also regulated by the Copyright Law and it generally protects the rights of: (i) interpreters and executors (e.g., actors, musicians, singers, dancers or artists in general); (ii) producers of phonograms and sound recordings concerning these recordings; and (iii) broadcasting companies in their programming.

Whilst software receives specific protection, i.e., software protection is provided by Federal Law No. 9.609/98 (the “Software Law”), the Copyright Law is complementarily applicable to the matter. Sui generis IPRs include plant variety protection, which is regulated by Federal Law No. 9.456/97, and the protection for the layout of an integrated circuit, which is regulated by Federal Law No. 11.484/07.

Copyright protects in Brazil all intellectual works that are creations of the mind, whatever their mode of expression or affixation in any kind of media, physical or virtual. Only concrete expressions are protectable and not ideas. It includes artistic, literary and scientific expressions, text, music, works of art such as paintings and sculptures, as well as technological works, for example, computer programs and electronic databases.

There are two types of rights conferred by the copyright system: (a) patrimonial rights, which provide to the holder the right to obtain financial return from the use and exploitation of the work and (b) moral rights, which accentuate the existing personal link between the author and the work. Different from patrimonial rights, moral rights shall not be transferred to third parties.

Registration is optional for purposes of protection. Assuming that the work is original, it will be afforded copyright protection irrespective of registration. National and foreign authors and owners may register their works with the public bodies defined by local norms. The main registration authority is the Copyright Office of the National Library.

Although not mandatory, copyright registration is still recommend as a way to evidence authorship, especially for foreign authors and owners. And in case of assignment or licensing to local companies, the respective agreement may be entered as a marginal note to the registration certificate, giving the opportunity to third parties to become aware of the contents of the agreement.

As a general rule, the Copyright Law sets the duration of economic rights for a period of 70 years counted from 1 January of the year following the author’s death.

Related rights provide protection to the following people or organizations: (a) Interpreters and executors (actors, musicians, singers, dancers or artists in general), because of their performances; (b) Producers of Phonograms and sound recordings (by CDs cassette tapes, for example) concerning these recordings; and (c) Broadcasting companies in their TV programming and radio.

Actions against the infringement of all types of IP may be brought under Brazil’s Penal Code and specific IP legislation, with the possibility of higher penalties for infringers including imprisonment and fines. There are two main levels at which IP rights may be enforced in Brazil:

  1. Civil action – there are no specialist courts exclusively dealing with IP-related cases. The ordinary civil courts deal with cases as appropriate. Laws relating to trade name registration and protection are contained within the Civil Code. All other areas of IP have their own specific legislation.
  2. Criminal prosecution – actions against the infringement of all types of IP may be brought under Brazil’s Penal Code and specific IP legislation, with (in theory, at least) higher penalties for infringers including imprisonment and fines. A criminal complaint must be preceded by a search and seizure action, which aims to collect evidence rather than halt the infringement.

Specialist federal courts in Rio de Janeiro are available to hear actions, such as cancellations, coming from proceedings at the national office. Specialized state courts are available in infringement actions in both Rio de Janeiro (first instance only) and Sao Paulo (second instance only). Actions by Customs also play an important part in IP enforcement in Brazil. Customs can monitor and seek seizure ex officio infringing products on import or export.