Suspending IP rights
The measure is a retaliation under the WTO Dispute Settlement Understanding. It is not known whether it is just a political move to make the US comply with the WTO Appellate Body Report on Subsidies on Upland Cotton or if the new law will be used as another tool in Brazil’s anti-intellectual property arsenal.
The provisional measure relates to Brazil’s recent victory before the WTO’s Dispute Resolution Body against the United States over federal subsidies to the US cotton industry. Brazil was authorised to retaliate, applying trade barriers to American products to the value of approximately $560 million. Moreover, the country was allowed to cross-retaliate in services and intellectual property to the amount of approximately $270 million.
“Intellectual property rights are protected in Brazil, not only by the TRIPs agreement but also by Brazil's Industrial Property Law, Copyright Law and, more importantly, constitution. In fact, IP rights are treated by the constitution as fundamental rights, just like freedom of speech and the right to the due process of law."
In view of the WTO panel’s result, a couple of bills were presented to Brazil’s congress establishing how the retaliation would be implemented. Bill No. 1893/2007, presented by Representative Paulo Teixeira of Brazil’s governing party, is the most important of these and establishes a number of measures against IP rights, including copyright, trademarks, patents, plant varieties, software and trade secrets, which comprise data package exclusivity rights. The provisional measure is clearly inspired by this bill and establishes a similar set of measures against those IP rights to be used as retaliation when the WTO Dispute Settlement Body authorises. Among the measures established are:
