US embassy cable - 04BRASILIA2157

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 & Biotech 
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