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In a recent statement to the press, Hilary Rosen, president and CEO of the Recording Industry Association of America (RIAA) praised the action taken by the U.S. Government to initiate reviews of the intellectual property rights practices, specifically copyright practices of Brazil and the Russian Federation.
This position needs to be analyzed by determining whether the Brazilian copyright laws are not complying with the International standards, in the extent of copyright protection, as defined by the GATT Uruguay Round in its Trade Related Aspects of Intellectual Property Rights (TRIPS) and other international conventions of which Brazil is part. The Law No. 9,610 of February 19, 1998 rules copyrights in Brazil. The Copyright Law is complying with the standards of the Berne Convention and TRIPS, at least with regard to the minimum standards and has all the necessary tools for the enforcement against violation of copyrights.
However, the protection of intellectual property rights may not simply rely on the existence of appropriate laws. It is also necessary to take into consideration the consciousness of the population about intellectual property rights. The enactment of the new industrial property laws in 1996, and the new copyright and software laws in 1998 brought to the attention of the general public the concepts of protection and enforcement of intellectual property rights. In fact, Brazilian laws provide the necessary tools that allow intellectual property owners to enforce their rights. However, to prevent piracy, it is necessary to invest in education of the population and for intellectual property owners to take direct action to enforce their rights.
In Brazil, the software industries, through the Associação Brasileira das Empresas de Software - ABES, and phonorecord industries, through the Associação Protetora dos Direitos Intelectuais Fonográficos - APDIF, are investing in campaigns to alert the population about the illegality of copying without authorization and the consequences of doing so. The campaign reduced the piracy in software to about 15 percent from 1998 to 1999.
Usually, intellectual property owners do not want to invest in investigation and litigation against pirates in markets such as Brazil. The erroneous idea that they will not be able to recover their property or the conclusion that the amount and time to invest in such action will not compensate as to the costs and time involved is causing the false impression that Brazilian laws are not prepared to provide the proper enforcement. Any action against piracy should consider not only the amount of indemnification, but also the social effect that a well-structured action can bring about to prevent future increases in piracy.
The Brazilian Government may not be able to do more than guarantee that the law provides the necessary tools for protection. The enforcement must come through the action of the intellectual property owners.
Erica Aoki, Partner,
Moreira Lima, Royster & Ohno Brazil
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