Propiedad industrial e intelectual y desarrollo tecnológico

31 Intel/ectual Property inBráziJ and the . .. use in automatic inforrnation processing machines, dispositives, instru~ ments or peripheral equipment, based on digital technology, to make them function in a specific manner and for specific purposes". The regime ultimately adopted is a modified copyright system. The terrn of protection is 25 years -less than under the copyright law- and it counts from the date of release of the software in any country. Such protection is independent of registration or enrollment of the softwarewith the SEl. Rights are granted to foreigners, provided their respective legal systems reciprocate coextensively for Brazilians. There is, however, an optional registration procedure, which requires disclosure to the govem– mental authorities and is intended to provide greater eertainty of uncon– testability. In contrast, however, for the marketing ofsoftware in Brazil the prior enrollment of the software by the SEI is obligatory. The SEI is to break the programs into categories based on whether the software is developed in Brazil or abroad, in national and non-national entities, etc., not because protection will vary. Rather, under the Inforrnatics Law foreign software will be prejudiced with respect to financings with public resources, tax incentives and with respect to marketing and profit remittances (or pay– ment of royalties). For example, enrollment and approvaI of acts or con– tracts under the Law by the SEI are expressly conditioned, ¡nsofar as programs developed by non-national companies are concemed, to the deterrnination of the inexistenee of a similar national program developed in the country (Art. 8, 2°). Enrollment following this test of national similarity is an essential precondition to the validity and efficacy of any juridical acts with respect to the programs, and for fiscal and exchange effects, inc1uding the Iegitimation of payrnents. Furtherrnore, the marketing of such computer programs is solely perrnitted to national companies (Art. 28) - which are narrowly defined in the Law of Informatics. The distribution or assignment agree 4 ments are subject to SEI approval, as a condition to enrollment of the programo Sanctions and penalties are clearly established by the Law. Violation of rights in software could result in 1-2 years of detention, and a fine. The same penalty, curiously, is specified for the 1'Iimporting, exposing, maintain– ingwarehoused, for purposes ofsale, foreign computer software that is not enrolled". A civil action for damages also is contemplated.