Source: O Globo, 31/08/2004

By GUSTAVO S. LEONARDOS

It is worrying how the growth of the informal economy has increasingly encouraged piracy. Informal relations, piracy and smuggling already account for no less than 40% of the national income,? Employing? 55% of Brazilian workers, according to a study by McKinsey consultancy, at the request of the Brazilian Institute of Ethics in Competition (ETCO).

Among the main causes of this situation we see an overloaded judicial system, applying complex and hostile legislation to the fair solution of conflicts and to honest and innovative companies. Despite the legal provision, to date no one has served a custodial sentence for exclusively violating intellectual property rights, and the indemnities in these cases, with honorable exceptions, are negligible.

For the country to have an efficient intellectual property system, an INPI (federal agency responsible for examining trademark and patent applications) is required, structured and operationally qualified to perform its functions. The fees collected by the INPI with the provision of its services should be sufficient for this, had they not frequently been diverted to other purposes by previous administrations, resulting in an increase in the delay in examining trademark applications from two to more than four years, if there is no problem. The examination of patent applications in turn requires a greater number of technicians and less political interference.

No surprise, therefore, that the reform of the Judiciary and the new industrial, technological and foreign trade policies have been placed on the political agenda as essential instruments for the resumption of economic and social growth.

The current government courageously and timely proposed a change in the underdevelopmental paradigm of copying others' work that prevented our true technological training. What is worrying is the delay in implementing measures to put these projects into effect, since the demand for results is noticeable with the elections coming.

The Brazilian Association of Intellectual Property (ABPI) has sought to make its contribution, proposing measures to improve and guarantee legal instruments directly or indirectly related to intellectual property.

Just to remind you of some of these proposals, we cite bill 7.066 / 02, which sets objective criteria on the appropriate indemnity for infringements of industrial property rights, in the absence of knowing the exact extent of loss and damage, as it already exists with great success. in the field of copyright.

This project also creates the figure of a punitive indemnity, increasing the indemnity initially fixed, at the judge's discretion, in order to prevent the convict from recurring in the offense. The payment of this indemnity, fixed in court or by formalized agreement between the parties, would extinguish the punishment.

Punitive damages could also be extended to cases of copyright infringement. In these cases, the custodial sentence should be a last resort because it burdens the State, which is obliged to defend admittedly private rights and still subject us to foreign commercial retaliation, as announced by the United States recently. In addition, the association sent detailed recommendations to the government about the draft Law on Innovation (number 7.282 / 02), which finally seeks to encourage and enable interaction between the private sector and public research institutes.

Creating an efficient intellectual property system, in addition to systematically combating piracy, depends on making financial resources available for research and development, in an environment favorable to the fair solution of conflicts and to honest and innovative companies.

GUSTAVO S. LEONARDOS is president of the Brazilian Intellectual Property Association (ABPI).