BRAZIL: PIRACY CPI'S THIRD IPR BILL

UNCLAS SECTION 01 OF 02 BRASILIA 002157

SIPDIS

STATE FOR WHA/BSC, EB/TPP/MTA/IPC SWILSON, AND CA/VO
STATE PASS TO USTR FOR SCRONIN, LYANG AND BPECK
USDOC FOR
4322/ITA/MAC/WH/OLAC/WBASTIAN/JANDERSEN/DMCDO UGALL/DRISCOLL
USDOC FOR 3134/USFCS/OIO/EOLSON/DDEVITO
TREASURY FOR OASIA/SEGAL
NCS FOR DEMPSEY

E.O. 12958: N/A
TAGS: KIPR ETRD KCRM PGOV ECON BR IPR
SUBJECT: BRAZIL: PIRACY CPI'S THIRD IPR BILL

REFS: A) BRASILIA 2150 B) BRASILIA 2017 C) BRASILIA 1668


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


2. Bill 3966/2004
(of the Piracy CPI)

Modifies Law no. 9.609/98, that regulates the protection of
intellectual property and computer software

The National Congress decrees:

Article 1 - Paragraphs 1, 2, and 3 of Article 12 of Law no.
9.609 of February 19, 1998, goes into effect with the
following edits:

"Art. 12 ....................

Paragraph 1 - If a violation consists of reproduction, by
any means, of computer software, whole or in part, without
the express authorization of its author or his
representatives:
Penalty - confinement from 2 (two) years and 2 (two) months
to 4 (four) years, and fine.

Paragraph 2 - The same penalty as the prior paragraph
applies to whoever acquires any title, distributes, sells,
puts on sale, rents, introduces into the country, hides,
distributes, exchanges or has stored, for purposes of
commercialization, original or copies of computer software
produced in violation of author's rights.

Paragraph 3 - ....................
I - .......................
II - ......................
III - in the case of paragraphs 1 and 2 of article 12 and
12-A. (New Wording)"

Article 2 - Law no. 9.609, of February 19, 1998, goes into
effect, with the addition of the following articles 12-A
and 15:

"Art 12-A. To publish, offer publicity services or
introduce by any means, conventional or electronic, ads or
information destined towards the purchase, sale, rental,
import, export or original or copies of computer software
in violation of author's rights or those who represent
them.
Penalty - detention of 2 (two) years and 2 (two) months and
4 (four) years, and fine

Art. 15. Whoever engages in the conduct described in
paragraph 1 of Art. 12 of this law, will lose the copies
seized to the rightful owner and will pay to him the price
of those that have been sold.

Sole Paragraph: If the number of copies reproduced is
unknown, the transgressor will pay the value of three
thousand units, in addition to those apprehended.

Article 3 - This law will enter 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 as a result of the work done by the CPI the
connection between piracy and organized crime became
overwhelmingly proven, the stiffening of some penalties is
necessary, not simply for the sake of saying that the law
is rigorous, but to avoid that people involved in these
criminal organizations operate on the margins of the law,
freely transiting Brazilian territory, with so-called
organized crime becoming more and more deeply rooted, and
reinforcing a "sense of impunity".

That is why we are proposing an increase in penalties from
confinement from one to four years and fine to confinement
from two years and two months to four years and fine.

On the other hand, the creation of a new kind of penalty
that regulates computer software, including various
behaviors practiced in software piracy, like publication,
offering publicity services, introducing by any means,
conventional or electronic, ads or information destined to
the purchase, sale, rental, import or export of original or
copies of computer software in violation of author's
rights.

Finally, Art. 15, now inserted, gives indemnification to
the owner of the violated rights, as mandated in Law. No.
9.610/98, that deals with author's rights.

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 this bill into
law.

Sessions Room, July 16, 2004

Deputy Medeiros, President
Deputy Josias Quintal, Reporter

End unofficial Embassy translation.

Danilovich