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GENERAL FEATURES OF THE NEW BRAZILIAN SOFTWARE PROTECTION LAW
On February 19, 1998, Law 9.609 was sanctioned, regulating the protection and sales of software in
Brazil, among other provisions. This Law entered into effect on February 20, 1998, revoking all
previous legislation concerning this matter, the backbone of which was Law 7.646, of 1987.
Law 9.609/98 translates the Brazilian bid for modernization. In fact, since 1990, when the Brazilian
opening to free trade begun, there has been substantial modification in the Brazilian legal system.
Nevertheless, Law 9.609/98 is perhaps the most eloquent sign that the era of substitution of imports
is coming to an end in this country. Although briefer than Law 7.646/87, it better fulfills the needs
of today’s national and international legal and commercial spheres.
In this sense, the main changes brought by Law nº 9.609/98 tackles three main issues: a) the
protection granted to the software by the Brazilian legal system, which has substantially increased;
b) the withdrawal of many a legal impediment and/or bureaucratic requirement to the sales and
licensing of software and c) the effective equalization of rights between national and foreign
owners of computer programs in Brazil.
I - Legal Protection and Commercialization of Software
One of the novelties brought by Law 9.609/98 was the broadening of the definition of software
(article 1), which now embraces not only the programs based on digital techniques, as stated in the
previous legislation, but also those developed from analogue techniques. The definition of software
furnished by article 1 of Law 9.609/98 establishes that a computer program is the “expression of a
set of organized instructions in natural or coded language, contained in a physical support of any
nature, of necessary use in automatic machines for information treatment, devices, instruments or
peripheral equipment”, and that they should make these hardware work in a determined way and for
specific ends. This broadening of the definition demonstrates the awareness of the legislator
regarding the speed of technical transformations. New techniques are constantly being created, and
the acceptance of the impossibility of creating new legislation to update and embody the concept of
software should be welcomed.
Moreover, the new Law expressly gives software the same legal protection as that applied to literary
works (article 2). Although this position was already accepted by the doctrine and jurisprudence, it
was not foreseen by Law 7.646/87, which limited itself to include computer programs as subject to
protection according with Copyright Law nº 5.988/73, without specifying by which of its categories
it would be covered. This (former) Copyright Law, in its turn, did not mention software as entitled
to copyright protection. The recent Copyright Law nº 9.610/98 finally foresees software protection
in item XII of article 7, clarifying its nature.
The protection of software rights, continues to be assured by new Law 9.609/98, regardless of
registration (article 2, § 3); but since registration remains a good means of establishing a date
for the beginning of protection, and as a prima facie evidence of authorship, it had to be properly
regulated. In this connection, registration of software is now ruled by Presidential Decree 2.556 of
April 20, 1998, in force since April 22, 1998, which mainly stresses that:
Computer programs (used herein as a synonym for “software”) shall be registered in the Brazilian
Patent and Trademark Office (article 1, first sentence)
Applications for software registration must contain extracts from the computer program and any
other data considered as relevant to its identification and the characterization of originality
(article 1, § 1, item III).
The above mentioned information is considered privileged and can only be revealed through
judicial order or request from the owner (article 1, § 2).
The veracity of said information is the entire responsibility of the applicant, and it neither
prejudices the right of third parties nor creates any responsibility to the Government (article 2).
Finally, it is to be stressed that whenever an application refers to a software based on another, the
applicant has to show the document that authorized such derivation (article 4).
With further reference to Law 9.609/98, there has also been a significant extension in the period of
protection, which has increased from 25 to 50 years. It must be noted that, although the new Law
(article 2, first sentence) expressly applies to software the same protection provided to literary
works, it does not grant the same 70-year period of protection provided to the latter by the new
Copyright Law (Law nº 9.610/98).
Another modification concerning the legal protection of software has occurred in relation to the
moment in which it begins: whereas the previous legislation only provided said protection from the
launching of the program in any country, the new legal diploma assures this protection as of the
first day of January subsequent to the year of the software’s publication, or, in its absence, from
the creation of the program (article 2, § 2). The new Law, however, does not clarify which would be
the moment of creation, an omission that will probably cause controversy. In our opinion a software
is “created”, among other hypothesis, when it is fixed in a physical support, according to the
understanding which prevails in other countries.
The new Law reaffirms the ample protection granted to the author by previous Law nº 7.646/87 in
relation to patrimonial rights (article 2), assuring him the economic benefits reaped from the
exploitation of the work (among which are found exclusivity of fulfillment and use, as well as the
right to grant authorization for its use by third parties). In order to assure these rights, the
author can, e.g., sue the infringer aiming at: 1) enjoining the wrongful act, 2) requesting
compensation for the losses and damages suffered, 3) judicially obtaining the search and seizure of
the counterfeited products.
On the other hand, software protection concerning moral rights - these being the rights related to
the personal links between the author and his work - are only admitted by the new legislation in two
specific hypothesis: the vindication of the paternity of the work by its author and his resistance to
non-authorized alterations thereof, when they discredit his honor or reputation, by means of
deformation, mutilation or other modification of the computer program (article 2, § 1).
Another novelty introduced by the new Law, concerns the license of the computer program (article 2, §
5). This article grants the author the exclusive right to authorize the license of his work, right
which remains independently from the sale license of copies thereof. However, he cannot prevent the
license of the software if the software itself is not the subject matter of the contract, that is,
if it is a mere accessory. Nevertheless, many specialists criticized this provision of the new law,
mainly because this exception may lead to the production of non-authorized copies beyond the author’s
control.
In the criminal sphere of software copyright protection, sanctions have been increased mainly through
the introduction of the punishment by confinement (in Brazilian criminal law this means that the
infringer may become an inmate of maximum or medium security prisons). The penalty varies from one
to four years, and should be applied in specific cases delimited by Law 9.609/98: 1) partial or total
undue reproduction of the original of the software, for commercial purposes, without the express
authorization of the author or his representative; 2) sales, displays, launchings, acquisition,
concealing or maintenance in depository for commercial purposes of the original or of a copy of a
software which has been produced in violation of a copyright (article 12, §s 1 and 2).
II - Equal Treatment for Nationals and Foreigners and Red-Tape Reduction in the Selling of Software
New Law 9.609/98 eliminated bureaucratic requirements demanded by the previous Law 7.646/87, which
limited the access of foreign companies in the software market in Brazil, seeking to favor the
national enterprises within the market reserve policy in effect at that time.
Therefore, the new Law extinguished the official enrollment of computer programs before the Ministry
of Science and Technology, which submitted foreign software to a previous “similarity” exam (the
enrollment could be granted only in the absence of a “similar” product developed by a Brazilian
company). Moreover, the granting of the enrollment was subject to other restrictions which in
practice meant the commercialization of foreign software in Brazil had to be made through a company
owned by natural persons domiciled in Brazil. In fact, since the beginning of the 1990s (i.e. long
before the new Law went into effect) these demands were no longer applied, and the new law has simply
made official the abolishment of such restrictions.
The new Law no longer subject the remuneration of the author or assignee of the program residing
abroad to the submission of invoices as evidence of the sales locally made by the licensee or
distributor. Nevertheless, until the present moment, there is no provision of the Central Bank of
Brazil in relation to the procedures that should be adopted for the remittance of this payment abroad.
In conclusion, new Law 9.609/98 eliminates all disparity of treatment between foreign and national enterprises
concerning software sales in Brazil.
III - Software and Consumer Protection
Law nº 8.078/90 provides for consumer protection, namely, any individual or legal entity acquiring
and using a product or service as an end user. This means that companies and institutions of any size
or nature as well as home users of software are protected by the provisions of the Code.
As far as software agreements are concerned, several provisions and concepts set forth in the Consumer
Code must be duly complied with. As an example all the limited warranties provided for in shrink-wrap
licenses, including a small warranty period granted to the end-users, although enforceable in Brazil,
must conform to the provisions of §s 1 and 2 of Article 18, as follows:
"§ 1 - If the imperfection is not corrected within thirty days at most, the consumer may alternatively
demand, at his option:
I - replacement of the product by another of the same kind, in a perfect state of use;
II - immediate reimbursement of the amount paid, with monetary updating, without prejudice to any
losses and damages;
III - proportionate price reduction.
§ 2 - The parties may agree to reduce or increase the term specified in the preceding paragraph, but
it may not be less than seven nor more than one hundred and eighty days. In adhesion compliance
agreements, the “term clause” shall be agreed separately, by express statement of the consumer."
Furthermore, shrink-wrap licenses are considered as adhesion agreements and therefore clauses
involving limitation of liabilities must be drafted in an easily visible manner that can be
immediately noticed by the reader of the contract.
Both distributors (when they buy and re-sell products and/or services) and suppliers are jointly
responsible before the end-users, as stated in Article 18 of the Consumer Protection Code:
"Article 18: The suppliers and distributors of durable or non-durable consumer products are jointly
liable for imperfections in quality or quantity that render the products unfit or inadequate for the
consumption for which they are designed or decrease their value, and for those resulting from
disparity with the information provided on the container, packaging, labels or publicity message,
with due regard for variations resulting from their nature, the consumer being able to demand
replacement of the imperfect parts."
The manufacturer/supplier, producer, builder, etc., regardless of nationality, as well as distributors
and importers, are liable, independently of fault, for damages caused to consumers by defects
resulting from the design, manufacture/supply, construction and assembly; formulas, handling and
making up, presentation or packing of their products, as well as for insufficient or inadequate
information on the use and hazards thereof.
According to the Brazilian Consumer Protection and Civil Procedure Codes, the end-user has the right
to claim losses and damages jointly from the distributor and the supplier. For this purpose, the
end-user must demonstrate in court that (a) he indeed suffered losses and damages; (b) these losses
and damages can be quantified and for this purpose the Court should set its amount; (c) the
distributor and the supplier failed to remedy the situation which resulted in the end-user's losses
and damages. However, in Brazil the Courts do not grant punitive or indirect damages in civil
liability cases; only the actual damages suffered by the plaintiff, and an amount equivalent to what
he reasonably failed to gain (as a consequence of the breach of the contract or of the tort) may give
cause to indemnification.
The distributor, on the other hand, has the right to recover any losses and damages resulting from
end-users’ claims against the supplier, under the same conditions stated in the precedent paragraph,
and, in this case, the terms of his contract with the supplier should also be taken into consideration.
Finally, on this issue, we would like to mention that besides any losses or damages which may be awarded
by court against the distributor and/or the manufacturer/supplier, there are several administrative
sanctions which can be imposed by the Brazilian government, should the parties act in violation of
the provisions of the Consumer Protection Code.
2000 © Momsen, Leonardos & Cia.
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