BRAZIL: PIRACY CPI'S SECOND IPR BILL

1. This is the second in a series of five cables on
legislation put forward on July 16, 2004 by Deputies
belonging to the Congressional Investigative Commission on
Piracy (reftel). Below is Embassy's unofficial translation
of the text of the second bill.



2. "Bill No. 3965/2004
(of the Piracy CPI)

Modifies regulations in the Industrial Property Code.

The National Congress decrees:

Article 1 - This law modifies regulations in the Industrial
Property Code.

Article 2 - Articles 183, 187 to 189, 190 to 194, 199, 204
and caput of art. 202 or Law no. 9.279, of May 14, 1996,
enters into effect with the following edits:

"Art. 183. Commits crime against an invention patent or
utility model whoever, with the intent to profit:
I - .......................
II - ......................
Penalty - detention of 2 (two) years and 2 (two) months to
4 (four) years, and fine. (New Wording)

Art. 184 .......................
I - ............................
II .............................
Penalty: detention of 2 (two) years and 2 (two) months to 4
(four) years, and fine. (New Wording)

Art. 185 .......................
Penalty - detention of 2(two) years and 2 (two) months to 4
(four) years, and fine. (New Wording)

Art. 187. Manufacture with intent to profit and without
authorization of the owner, a product that incorporates the
registered industrial design, or substantial imitation
thereof that could cause error or confusion.
Penalty - detention of 2 (two) years and 2 (two) months to
4 (four) years, and fine. (New Wording)

Art. 188 .......................
Penalty - detention of 2 (two) years and 2 (two) months to
4 (four) years, and fine. (New Wording)

Art. 189 Commits a crime against a trademark whoever, with
the intent to profit:
I - .......................
II - .......................
Penalty - detention of 2 (two) years and 2 (two) months to
4 (four) years, and fine. (New Wording)

Art. 190 .......................
I - .......................
II - .......................
Penalty - detention of 2 (two) years and 2 (two) months to
4 (four) years, and fine. (New Wording)

Art. 191 ...................
Penalty - detention of 2 (two) years and 2 (two) months to
4 (four) years, and fine. (New Wording)

Art. 192 .......................
Penalty - detention of 2 (two) years and 2 (two) months to
4 (four) years, and fine. (New Wording)

Art. 193 .......................
Penalty - detention of 2 (two) years and 2 (two) months to
4 (four) years, and fine. (New Wording)

Art. 194 .......................
Penalty - detention of 2 (two) years and 2 (two) months to
4 (four) years, and fine. (New Wording)

Art. 199. For the crimes covered under this Title the penal
action will be unconditionally public, except in the cases
covered under art. 193, 187, 189 and 195, for which the
action will be private.

Art. 202. In addition to the preliminary mission of search
and seizure, the interested party or Public Ministry can
also request (New Wording):
I - .......................
II - .......................
Art. 204. Once the mission of search and seizure has been
completed, in the case of private penal action, the party
who requests it in bad faith, spirit of competition, mere
whim or gross error, will be responsible for losses and
damage."

Article 3 - Art. 196 of Law no. 9.279, of May 14, 1996,
goes into effect with the following single paragraph added.

"Art. 196 .......................
The detention penalties referred to in the caput of this
article will be increased by two thirds if the crime is
committed by criminal association or comes to affect more
than one passive subject, independent of the penalties
imposed for the crimes of bodily injury or death." (New
Wording)

Article 4 - This law goes into effect on the date of its
publication.

JUSTIFICATION

The bill that the Piracy CPI hereby presents has as its
objective to modify the penal law, to combat piracy so
prevalent in our society.

During all these months of work, besides all those directly
affected by piracy, the Commission heard various
representatives of the Public Ministry. They were
unanimous in stating that despite the good intentions of
the legislature with regard to Laws no. 9.099 and 10.259/00
concerning Special Civil and Criminal State and Federal
Judgeships respectively, the regulations in art. 89 of Law
9.099, described in Law no. 10.259/00, create the
impression that piracy is a crime of lesser importance.

Subject determination concedes the benefit of procedural
sursis to the author of a crime whose minimum penalty is
equal to or less than one year.

Since after the work done by CPI the connection between
piracy and organized crime became overwhelmingly proven,
the stiffening of some penalties is necessary, not simply
to say that the law is rigorous, but to avoid that the
people involved in these criminal organizations remain on
the margins of the law, freely transiting the Brazilian
territory, with so-called organized crime becoming more and
more deep rooted, and reinforcing a "sense of impunity".

This is why we are proposing an increase in the penalties
currently in place from detention of three months to one
year or fine to detention of two years and two months to
four years and fine.

The CPI is convinced that in addition to the force of the
penalty of privation of liberty, the penalty of fines is
essential as an educational tool; one should not substitute
the other.

The remaining changes were only to insert into four penal
types the expression "with the intent to profit", excluding
from the crime in this way, people who have practiced this
behavior without this intent.

Through the above and with the belief that the adoption of
the measures hereby proposed will aid in the fight against
piracy, the Piracy CPI counts on the support of the
illustrious Deputies for the conversion of the bill into
law.

Sessions Room, July 16, 2004

Deputy Medeiros, President
Deputy Josias Quintal, Reporter
End unofficial Embassy translation.
Danilovich