By André Zonaro Giacchetta and Bruno Caldas Aranha, Valor Econômico - 30/05/2005

When the National Council for Combating Piracy and Offenses against Intellectual Property was created last year, much was speculated about its effectiveness, as it was feared that, like the former Interministerial Committee to Combat Piracy, the new body would sin for inoperability. However, the launch of the National Plan to Combat Piracy removed this first impression.

The plan presents 92 measures to combat piracy in the country and foresees the participation of the three spheres of power - Executive, Legislative and Judiciary - both at the federal, state and municipal levels. In this sense, it can be said that the federal government will act on three different fronts in the fight against piracy: the repression of the manufacture and commercialization of counterfeit products; raising public awareness of the damaging effects of piracy; and the improvement of the economic environment for the sectors most affected by the proliferation of counterfeit products.

The outline of the plan spells out a very strong repressive bias, and it could not be otherwise. Currently, piracy generates R $ 56 billion in Brazil and last year alone eliminated two million formal jobs, having caused the State a loss of R $ 8,4 billion in tax collection.

So much so that the plan provides for the creation, at the state level, of special bodies linked to the State Secretaries of Justice that will coordinate the actions of the police, through specialized police stations, with the assistance of the state Public Prosecutor and the key municipalities. The municipalities will act in these actions as an administrative police, applying sanctions to the “pirates” such as a fine, seizure of materials and revocation of operating licenses.

The plan also created in the National Council for Combating Piracy and Intellectual Property Offenses a group that will prepare and accompany, in the National Congress, the proposals to amend the current legislation, in order to lend greater effectiveness to measures to combat piracy. One of the main proposals is the one that raises the penalties for crimes against industrial property (such as trademarks and patents), provided for in Law No. 9.279 / 1996, which will give these crimes an equal treatment in relation to those committed against copyright (such as literary, artistic or scientific works), foreseen in the Penal Code, modified by Decree nº 10.695 / 2003.

In this way, the minimum penalty for crimes against industrial property will go from six months to two years of detention, and such crimes will no longer be considered of less offensive potential, which justified the possibility of applying the rules established by Law No. 9.099 / 95 - the Law of Special Courts - and the receipt of various benefits by counterfeiters, such as criminal transactions and procedural cases.

The minimum penalty for crimes against industrial property will go from six months to two years in prison

Another important legislative change refers to a small correction of the Code of Criminal Procedure (article 530-D), which will remove the understanding of the obligation to carry out expertise on all seized products, which is physically impossible, given the volume of material pirate seized in police and judicial actions. This correction will make it clear that the expertise can be carried out by simple sampling.

In addition to the adoption of repressive measures, the federal government will act to raise public awareness of the harmful effects that piracy causes to private initiative and to the country itself, such as, for example, the United States threat to exclude Brazil from the General System of Preferences. This awareness-raising activity will also cover members of the Judiciary, through symposia and congresses in which the importance of intellectual property will be highlighted. In addition, there is provision for the creation, at the state level, of courts specialized in crimes against intellectual property.

The council also recognized that the price difference between original and counterfeit products is a major attraction for the purchase of counterfeit products by the population, committing itself to studying the feasibility of reducing the tax burden to the sectors most affected by piracy, as a way to bring them more competitiveness, since the disproportion of prices generates totally unfair competition.

It is noted, therefore, that the plan to combat piracy is yet another demonstration to the national productive sectors and to the international community that Brazil wishes to face piracy. The implementation of all its measures - both in the repression of illegal activities and in the awareness of the population and in reducing the tax burden - will create an environment conducive to productive investments and will reduce a problem that plagues all countries in the world, to a greater extent. or lesser degree.

Undoubtedly, the draft of the National Plan to Combat Piracy presented by the council portrays a solid positioning of Brazil in the face of complaints presented on the international scene regarding the defense of intellectual property rights. The success of this plan is in the efficiency of the application of the trinomial awareness, repression and fair state provision.

André Zonaro Giacchetta and Bruno Caldas Aranha are lawyers at Pinheiro Neto Advogados in São Paulo and Rio de Janeiro, respectively