Software Protection in Brazil for EU SMEs Mercosur IPR SME Helpdesk.

Software Protection in Brazil

for EU SMEs

Mercosur IPR SME Helpdesk

INDEX

o Introduction about Software´s Brazilian Marketo Software Protection and Software Registration in Brazil:

o Definition of Software According to Brazilian Lawo How could software be protected in Brazilo How to register software in Brazil

o Software Infringements and Legal sanctions in Brazil: o Illegal behaviorso Civil Remedieso Criminal Penalties

o Related Links & Additional Informationo MERCOSUR HELPDESK

TRAINER

SOFTWARE´S BRAZILIAN MARKET

BRAZILIAN MARKET STATISTICSo Brazil places the top 10 software market in the world

o Positive factors:— Low entrance barriers— Relatively minor structural costs — Facilities to distribution channels

o 98% of Software Developers in Brazil are SMEs

o Brazil has a specific Software Law

o Brazil has the lowest Piracy rate in Latin America

More information can be found at: http://export.gov/brazil/static/CC_BR_DoingBusiness_CCG_PDF_Chap4_ComputerSoftwareandServices_Latest_eg_br_062846.pdf

SOFTWARE PROTECTION AND

SOFTWARE REGISTRATION IN BRAZIL

DEFINITION OF SOFTWARE

Software or Computer Program is the expression of an organized set of instructions in natural or coded language, necessarily employed in automatic machines for manipulation of data, devices, tools or peripheral equipment.

Key Words: source code and object code.

SOFTWARE PROTECTION IN BRAZIL

How could be protected?

1. Copyright

2. Patents

3. Trade secrets

PS: The Software´s layout and the Software´s name can also be protected by copyright and trademark, respectively.

SOFTWARE PROTECTION

• Copyright:

It is the most adequate protection according to Brazilian Software Law

Duration: 50 years, counted from the January 1st of the subsequent year of its publication or creation

As any copyright work, software rights arise from its creation and its registration is not mandatory

Software registration is quite recommendable to secure the presumption of ownership and to prevent eventual infringements

As any copyright work, any infringement shall be literary / plagiarism

SOFTWARE PROTECTION

• Patent:

Brazilian Patent Law expressly prohibit the protection of a software per se as a patent. It is admitted only in case of a device including a specific software

Patent requirements: Novelty, Inventive Step and Industrial applicable

Duration: 20 years, counted from the filing date

Full enforcement / very strong title (certificate)

Current understanding to protect the software as a method.

Method involving commercial, financial and accounting solutions, since it results in a technical solution (example: optimization, improvement of interfaces, file management, etc.)

SOFTWARE PROTECTION

• Trade Secret:

Not advisable since the difficult to:

(i) take the reasonable precautions on keeping secret the information;

(ii) burden of proof / evidences concerning the improper use or retrieval of the information;

(iii) do not prevent/protect the reverse engineering

Duration: unlimited, as long as it is kept on secret

Non Disclosure Agreement (NDA) and Technological Protection Measures could be alternative options to avoid infringements.


Shall I Register a Software?

• Software Registration is voluntary but advisable, especially to enforce the right.

Possible options:

• Unregistered Software: the author must recollect and furnish proof of his/her authorship and ownership.

• Registered Software: the registration confers the author a presumption of authorship.


How to register a software

• Who Can Register? Individuals or companies (national or foreign). However, the creator is always an individual. Thus, in case of companies it is necessary to submit an assignment

• Where to Register? At the Brazilian Patent and Trademark Office (BPTO)



• Which Documents I Need? Formal Documents: data referring to the author

and holder (name, nationality, marital status, profession, ID, birth date, telephone, address and e-mail)

Technical Documents: data referring the software (program´s title, creation´s date, type of language, scope and type of program)



• Formal Requirements:

Portuguese LanguageFormal and Technical documentation must be in

PDF and in CD/DVD formatThe media should not be rewritableAuthorization to the BPTO copy the CD/DVD Authorization in case of derivative work


BPTO Procedures:

• Filing• Formal Examination• Eventual Official Action• Granting Publication• Certificate Expedition• Renewal of 10 years of secrecy

SOFTWARE INFRINGEMENTS


Illegal Behaviors

• Unauthorized exploration:

Reproduction Unauthorized commercialization Offering for sale, importation or acquisition Storing for trade purposes


Civil remedies

• Cease the infringement conduct

• Prohibition of incurring in new acts (as per fines)

• Seizure and destruction of the goods (via preliminary injunction)


Criminal Penalties

• Imprisonment from 6 months or fine

• If the infringement has commercial purposes, the penalty is increased from one to four years and fine

Software Protection in Brazil for EU SMEs Mercosur IPR SME Helpdesk.

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