Welcome to our blog for Intellectual Property Law and Practice in Latin America!
¡Bienvenidos a nuestro blog de Derecho y Práctica de la Propiedad Intelectual en Latinoamérica!
Bem-vindo ao nosso blog sobre Direito e Prática de Propriedade Intelectual na América Latina!

Monday 22 February 2016

Gilberto Macias (@gmaciasb)

Indecopi lanza “Patenta Universidad”

El Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual (Indecopi) ha puesto a disposición del sector académico y de investigación, la herramienta “Patenta Universidad”.

El propósito es incentivar el conocimiento y uso del sistema de patentes entre los centros superiores de estudio que apuestan por la innovación.

El programa “Patenta Universidad” está abierto a todas las universidades del país, centros académicos superiores o entidades de investigación que no hayan usado de manera recurrente el sistema de patentes en los últimos cinco años, pero que cuenten con una importante cantidad de  proyectos de investigación o de innovación tecnológica.

Las instituciones que deseen participar en “Patenta Universidad” deben ingresar a  www.indecopi.gob.pe/din/pu y seguir las indicaciones establecidas en los ‘Lineamientos del  Programa’. La fecha límite para acceder es el 19 de agosto de 2016.

Todas las actividades que comprende “Patenta Universidad” serán desarrolladas gratuitamente.

Más información aquí.
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Monday 15 February 2016

Patricia Covarrubia

Academic Misconduct, plagiarism, copyright infringement or just an electoral fight

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This month Peru’s newspapers have been busy reporting about an alleged plagiarism done by Mr César Acuña Peralta who is running for the Peruvian Presidency (here and here)

Image result for plagiarismMr Acuña has been accused of copying his doctoral thesis submitted at the Universidad Complutense, Madrid in 2009. Added to this accusation, now it emerges that he also copied his master’s thesis submitted at the Universidad de los Andes, Colombia. In the latter, news referred to the fact that some paragraph were well attributed to the author and using quotations marks but others were not. The alleged paragraphs were taken from the book authored by Cruz Cardona.

Accusations are so strong that the Peruvian National Institute for the Defence of Competition and Protection of Intellectual Property (Indecopi) has decided to investigate the accusation (in line with its Organization and Functions Act and Decree Legislative 822 that gives to it powers to investigate acts affecting copyright and related rights within the country). Moreover, the Universidad Complutense has announced that “it will initiate an investigation to determine whether Acuña committed academic fraud.”

Image result for plagiarismThe Spaniard newspaper El Pais noted that Universidad Pontificia Catolica del Peru passed the thesis through Turnitin, a software which is widely used in academia that matches the document against a database, and so detecting originality or similarity to other sources. The said academic “found in the first 165 pages an average of 80 % similarity to other Internet sources not necessarily cited in the investigation.” Declarations in this newspaper refers to pages after pages of textual copying without been either attributed or using quotation marks. In many educational institutions, plagiarism is treated as strict liability (as copyright primary infringement) while others require intention. In any case, plagiarism is a disciplinary offence.

A more recent accusation was brought by the newspaper El Comercio noting that it has transpired that in 2002 Mr Acuña authored and published a book which is an identical copy of the book authored by Peruvian Professor Otoniel Oyarce Alvarado.

Wow! Wow! Wow! These are really strong accusations. A master, a PhD and a book?! I am indeed amazed how these could have happen…I presume the University in Madrid did not have or use any software to check the originality of the work, -- possibly. However, we are talking pages after pages. How the supervisors and the examiners did not notice this matter? As an academic sometimes we read students work and we stop to think, uh? I have read something like this somewhere. But we are humans, and mistakes could have happen…but in a PhD there is so many people involved, and no one noticed it? The other issue that comes into my attention is the book that he allegedly copied. If it is claimed that is a copy of another one...how did anyone not notice this before? Both books are published in Peru and written by academics in Peru – surely a student or a person in the same fora could have noticed something.

Will Mr Acuña resign from his Presidency postulation? Or will he wait for the University in Madrid and the Indecopi to give a verdict?
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Friday 12 February 2016

Patricia Covarrubia

Peru is adding to its list: WIPO administered treaties

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On 02 February Peru ratified the Marrakesh Agreement at the headquarters of WIPO.

Image result for blind readingThe news are published by the Peruvian National Institute for the Defence of Competition and Protection of Intellectual Property (Indecopi) which welcomes the recent ratification. The Marrakesh Agreement obliges signatory states to make changes and exceptions to the rules on copyright for the benefit of the blind, visually impaired, and otherwise print disabled (VIPs).

Peru became the fourteenth country to ratify the treaty, and the seventh Latin American country to do so. The others are: Argentina(April 1, 2015), Brazil (December 11, 2015), El Salvador (October 1, 2014), Mexico (July 29, 2015), Paraguay (January 20, 2015), Uruguay (December 1, 2014).

The Treaty, which forms part of the body of international copyright treaties administered by WIPO, will enter into force three months after 20 Contracting countries deposited their instruments of ratification or accession. Peru joined WIPO in 1980 and have signed many treaties not only in the area of copyright e.g. UPOV Convention, Budapest Treaty, Patent Cooperation Treaty and the Trade Mark Law Treaty.

Finally, INDECOPI refers to data brought by the World Blind Union (WBU), and notes that “over 90% of all published material is inaccessible to the blind and visually impaired.”

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Tuesday 9 February 2016

Patricia Covarrubia

Ecuador: repealing its IP law for a code of social economy

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Ecuador is fully engaging in its debate over the proposed ‘Código Orgánico de Economía Social del Conocimiento, la Creatividad y la Innovación (Organic Code of Social Economy of Knowledge, Creativity and Innovation) -- known as ‘Codigo Ingenios’ (Intellects Code).

The bill went to the Ecuadorian Assembly back in June 2015 as an initiative of the Ministry of Higher Education, Science and Technology (Senescyt ) supported and drafted with the help of different sectors including the Ecuadorian Intellectual Property Office (IEPI). The current Intellectual Property Law will be repealed when the new bill is approved. The proposed code comprises four books and over 500 articles. According to the newspaper ‘El Comercio’, its strengths are in intellectual property, access to the Internet and protection of ancestral knowledge.

Image result for codigo ingeniosSeveral conferences inviting students from different Universities, the legal profession, the civil society and civil servants are taken place. Moreover, the IEPI promotes the code as aiming to move “from a primary export economy to a social economy of infinite resources” and thus, noting the need to protect “the Ecuadorian knowledge and human talent”. The aims are on 11 principles: “right to share knowledge, economic incentives to encourage innovation, cheaper drugs, boost domestic inventions, internet as a basic service, support and enhancement of research, long life technology, promotion of free software, combat biopiracy, profitable mining, and the right to traditional knowledge that belong to indigenous peoples and nationals.”

According to IEPI’s director, the bill targets knowledge and entrepreneurship, but ensuring the protection of the creators’ rights. You may ask: isn’t this the purpose of their own current IP legislation? It appears that it does not. In the words of Senescyt’s secretary, the current IP “law has failed, because it is excessively private and excessively commercial and has produced nothing of innovation" [has there been any national investment on research --you will reap if you have sown, right?]. He continues saying that the code will guarantee all IPRs in all lucrative activities in academia or research and help to circulate their works and products, which I do concur. But, I am afraid I cannot see how the present IP legislation does not already protect these.

There are two other matters that I would like to address. It is asserted that the change of law is needed and that there is a need to have this code on social economy. I do wonder: is IP and IP law a legislation for social economy? The propanga surrounding the Code re-emphasizes that the current IP law only protect the rich, transnational companies, big pharmaceutical companies, foreigners and does nothing for ‘the people’ (referring to those of not enough resources). I am afraid IP protects inventions, creation, works of art, brands, regardless of nationality or wealth. In practice, it is true that in developing countries and less developed ones the majority of patents would be granted to foreigners, but this is not because there is something wrong with the law. It is because the world's most innovative countries are high-income countries (full stop - see INSEAD's report and also WIPO’s latest report which explores the role of IP at the link between innovation and economic growth). Would it be ok to say that the propaganda appears to be more political sided?

There are two issues that also capture my attention in this ‘advertisement’ of principles 1) right to traditional knowledge (TK) and combat bio-piracy and 2) cheaper drugs.
1) Ecuador legislation protects TK and genetic resources. Ecuador is part of the Andean Community of Nations (CAN), and it has one common IP system through CAN Decision 486 - a supranational law. In this regards:
Image result for doha declarationa) PATENT: when a product or process is obtained or developed using TK of indigenous, African American or local communities, protection is only granted if the applicant has a certificate, or license or authorization from the originating source (CAN Decision 391).
b) Trade Marks: applications that contain the name of indigenous, African American, or local communities, are not allowed.

2) Cheap Medicines
a) In 2009 Ecuador amended its IP law to use the TRIPS flexibility (Doha Declaration) in favour of developing countries i.e. compulsory licensing. At the end of 2014 the IEPI had received 32 applications for compulsory patent licenses- some were refused or abandoned, but nine were granted.
b) Decision 486: second use patents known as the ‘Swiss formula’ are not allowed.

In the last five years some Latin American countries like Brazil, Mexico and Chile, have more than doubled its international patents but this is seen because governments and organizations invests in projects. In Colombia we see a ‘National Innovation Strategy’ by the Director of the National Planning Department. In 2013 Medellin won against New York and Tel Aviv, the most innovative city title. In Brazil there is also a Science & Technology Action Plan giving incentives to bio-tech patents. It also looks deeper into what they call ‘critical mass’ population studying masters and PhDs, how can they help to increase these. Chile is examining a Bill to amend its Constitution i.e. art.19 to: (1) assert ownership over the country's genetic resources; (2) protect against the unauthorized use of these resources or the traditional knowledge (TK) of indigenous communities; and (3) promote the fair and equitable sharing of the benefits derived from the exploitation of these resources or TK. Peru has a National Anti-bio-piracy Commission. In all these countries the message is clear, innovation may attract (foreign) investments in the form of trade and/or R&D, but if the country does nothing to promote and to launch programs to help its people to innovate, legislation alone does nothing.

We also see projects in the sector of trade marks, collective and certification marks and GIs. Colombia has a running project through the ‘Intellectual Property and Crafts’ which supports the artisans in the legal process together with ‘Artesanias de Colombia’; Chile has another one called ‘Sello de Origen’ (Label of Origin) developed by the Ministry of Economy together with the IP national office (INAPI). All of these projects are helping the communities and sectors with are rich in knowledge but may not have the tools (economic and legal advice) and/or do not know what exist or is available for them to protect their IPRs.

Image result for socialism venezuela
Is it me, or is a tendency for Latin American Governments of the left wing to always accuse the develop world? 
The idea of Ecuador enhancing national products and knowledge is to be applauded and focus ought to be on what they can do to improve. We (Latinos) need to find a way to promote and protect agriculture, biodiversity, science, and also culture.  The Government ought to work on how to provide conditions that stimulate innovation, needs to provide supportive institutions, incentive tertiary education and fund research.

Will Ecuador find this by repealing the current IP law? At the moment there are a few projects that help to promote and protect national knowledge e.g. the Ecuadorian Resolution No 004-2015 CD-IEPI which grants full discount on charges related to requests to register, record or assign rights related to GIs-- free until December 31, 2017. This week, we hear from the Ecuadorian Institute for the Promotion of Exports and Imports (Pro Ecuador )good stories of their campaign which promotes the inclusion of local brands abroad.

The proposed Code will provide investment for creations, promising 0.57% of gross domestic product  but, is there a need to repeal its IP law for this? There has been so much time and investment in this 'code' that expectations are getting higher by the minute. We now need to wait and see.

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