US embassy cable - 04BRASILIA2156

UNCLAS SECTION 01 OF 03 BRASILIA 002156 
 
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 & Biotech 
SUBJECT: BRAZIL: PIRACY CPI'S SECOND IPR BILL 
 
REFS: A) BRASILIA 2150 B) BRASILIA 2017 C) BRASILIA 1668 
 
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