Suspending IP rights


Otto Licks and Rodrigo Souto Maior

Brazil’s President Lula has enacted Provisional Measure No. 482, providing statutory authority to government agencies to issue compulsory licences, expropriate IP rights and suspend the obligation to maintain an IP regime with minimum standards, as provided by the TRIPs agreement.

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."

TRIPs, IP rights