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!

Thursday, 28 January 2010

Patricia Covarrubia

INDECOPI inspecting genuine use of software in local businesses

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The Peruvian Institute of Unfair competition and Protection of IP (INDECOPI) is monitoring some businesses in order to verify that they are using genuine software in their computers. So far, in the city of Chiclayo, in the Lambayeque region, the Institute has inspected six companies, 159 computers and 295 software.

"The installation or reproduction of computer programs without authorization of the holder (license) infringes the rights recognized by Peruvian law and international treaties," said Magaly Guzman, head of the Regional Office of INDECOPI in Lambayeque.

After this procedure, INDECOPI may initiate appropriate administrative processes to punish the companies in which it has found pirated software. The legislation allows the INDECOPI to impose administrative sanctions (i.e. temporary or permanent closure of an offending establishment), confiscation of equipment and/or accessories involved in the illegal act and the imposition of fines.
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Wednesday, 27 January 2010

Patricia Covarrubia

Ecuador has a new Data Act

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Yesterday, the Ecuadorian Assembly approved the National Public Data Registry Law. The new legislation involves developing a public database containing information of all citizens.

The legislation provides that the information contained in Civil, Commercial and Property records must be packed together into a single database. The data will be managed by the National Data Registry (DNRD), which is an organisation created for this particular purpose.

To access to this sole database, the applicant must submit in writing, a request establishing their personal information (name, ID number, address) and explain the use that s/he will give to the information. This is required as a mechanism directed to protect the integrity of the owners of the data.

Uh, integrity? Surely the Act is not called Data Protection Act. In fact,this legislation appears to be the contrary. Is it wise? A single organization possessing every single detail of a person sounds a little bit extreme, don’t you think? We are talking about, banks details, properties, family, telephone, well everything that is hold by a civil, commercial and property registry. I do not want to be cynical but it does not look good.

Bear in mind that Ecuador does not have a distinctive Data Protection Act. However, the Constitution 2008 recognises the protection of personal data. It also establishes that the collection, store and distribution of personal data needs to be authorized by the owner or by law (Art 66 s 19). My question is, will this Article be overruled by the new Data law? It appears so.

Yet, the Ecuadorian Constitution recognises the right of privacy (Art 66 s 20); but, will it be enough to warrant the Ecuadorians some privacy?

Final note
Data Privacy Day is… January 28. Will the Ecuadorians celebrate?
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Gilberto Macias (@gmaciasb)

Chile: Counterfeiting and Corporate Social Responsibility.

Chilean President Michelle Bachelet signed on January 11, 2010, the Organization for Economic Co-operation and Development’s (OECD) access agreement and thus enabled Chile to become the second Latin American country to be accepted as a member of this prestigious international organization.

One of the OECD’s concerns is related to the negative externalities that counterfeiting and piracy are generating on international trade, and more specifically on companies, governments and consumers. In this sense, it should be noted that these wrong doings have gained public awareness and are no longer considered exclusively as a problematic enforcement matter for trademark owners from the private sector.

According to OECD, counterfeiting and piracy harm not only companies by diminishing the economic value of their trademarks, but also have a staggering impact on governments that face lower tax revenues and increasing costs for dealing with informal trade and organized crime.

Likewise, these infringements are a constant threat for consumers, who put at risk their health and personal assets when acquiring fake goods mainly from the pharmaceutical, electrical and tobacco industries.

Moreover, the OECD also promotes the notion of Corporate Social Responsibility, so that companies should be concerned not only in regards to the needs of their clients and employees, but also in connection with other public issues, such as the adverse impact that counterfeiting triggers among consumers in different markets.

Consequently, it seems quite straightforward to argue that the incorporation of Chile to the OECD is not only a great opportunity for the government and Chilean companies, but also for foreign companies based in Chile that will qualitatively improve their Corporate Social Responsibility if they continue collaborating with our country’s efforts to reduce counterfeiting and piracy.

Prepared by Rafael Pastor (Abogado de Baker & McKenzie – Cruzat, Ortuzar & MacKenna Ltda. –, Chile), posted by Gilberto.
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Tuesday, 26 January 2010

Jeremy

Peru edges towards adoption of Hague Apostille provisions

A note in volume 65, no.2 of the INTA Bulletin (January 15, 2010) records that, on November 9, 2009, Peru's Congress approved that country's accession to the Hague Apostille Convention. The Convention will not however enter into force until Peru deposits its instrument of accession and that deposit is acknowledged by domestic Peruvian law.

The note draws attention to the fact that this development will have an impact on various aspects of intellectual property practice and to powers of attorney granted abroad (which currently require legalisation by a Peruvian consulate in the foreign country). Under the Peruvian Industrial Property Law (Legislative Decree 1075) a power of attorney may be granted as a private document -- without consular legalization -- so long as the party appointing the attorney does not require him (i) to withdraw an application or cause of action or other procedural action; (ii) to waive a registration that has been granted or (iii) to file infringement actions for the violation of IP rights.
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Gilberto Macias (@gmaciasb)

Chile: Consecuencias del uso del PowerPoint Pirateado

Rodrigo Ramírez, de Chile, nos ha aclarado que los hechos narrados en mi post anterior acontecieron en el mes de enero, pero del 2009!!

Por lo que, tras más de un año de que se produjo tan ridícula e impresentable situación, la consecuencia generada fue la renuncia del Director de la SCD, Santiago Schuster.

Gracias Rodrigo.
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Monday, 25 January 2010

Aurelio Lopez-Tarruella Martinez

El chileno Maximiliano Santa Cruz reelegido presidente del SPC


En reunión llevada a cabo hoy en Ginebra, Suiza, el abogado Maximiliano Santa Cruz Scantlebury, actual director del Instituto Nacional de Propiedad Industrial de Chile (INAPI), fue reelegido por los países miembros de la Organización Mundial de Propiedad Intelectual (OMPI), como Presidente del Comité Permanente sobre el Derecho de Patentes de dicho organismo.


Fue nominado al cargo a nombre del grupo de países desarrollados, secundados por el grupo de países de África, América Latina y el Caribe, para que iniciara su segundo período (cuya primera etapa comenzó en 2008).


El Comité Permanente está compuesto por los más de 180 Estados miembros de la OMPI y por organizaciones intergubernamentales y no gubernamentales. Su función es ser la instancia de discusión de asuntos relativos al sistema de patentes, facilitar la coordinación y orientar el desarrollo progresivo de los derechos de patentes a escala internacional.

Al recién reelegido presidente, se le reconoce haber destrabado las posiciones existentes entre los países desarrollados y en vías de desarrollo, después que el Comité paralizara su labor durante dos años, por diferencias en torno al proyecto de Tratado sobre el Derecho Sustantivo de Patentes.

Prepared by Rodrigo Ramirez (Abogado de Ramos Pazos, Montecinos & Díez, Chile), posted by Aurelio
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Gilberto Macias (@gmaciasb)

Chile: Exponen Ley del Derecho de Autor con PowerPoint Pirateado.


Durante una charla en la ciudad de Antofagasta, en el norte de Chile, Fernando Ubiergo, presidente de la Sociedad Chilena del Derecho de Autor (SCD), disertó hace unos días sobre un proyecto de Ley del Derecho de Autor y al abrir su presentación en el programa PowerPoint apareció en la pantalla la frase: “esta copia de PowerPoint no es original”.

Aunque el Sr. Ubiergo ha señalado que los programas no le pertenecían a él sino a la SCD, pues el ordenador utilizado es propiedad de dicha entidad, ha presentado su renuncia al cargo de presidente de la SCD, pero el Consejo le ha pedido mantenerse al frente de la sociedad hasta el término de la investigación.

En su declaración, la SCD afirmó que la instalación de un programa no autorizado esta prohibida absolutamente "y todos nuestros computadores cuentan con las licencias correspondientes", aunque será la auditoría anteriormente citada la que lo determine.
Desde luego ha quedado demostrado que en casa del herrero, cuchillo de palo...
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Patricia Covarrubia

EU Free Trade Agreements with Latin America = no points

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The blog has been following the FTA that the EU is trying to do with three Latin America blocs ( see info here and here). The expectation is to sign the agreements during the Ibero-American summit to be held in Madrid in May. However, from the three, we now learn that only two have hope.

Last week, the EU and both Peru and Colombia meet in Lima for the eighth round of negotiations. However, the negotiation was not close due to, according to Joao Aguiar Machado, director of Commerce for the European Commission, "the sensitivities of the parties". He added that there is confidence that in the next meeting (expected in late February or early March in Brussels), the agreement will be finalised.

Looking throughout the past negotiations (here) I was optimist, nonetheless today, I cannot see any advance. The reason being that the problematic issues, such as tariffs for access to European cars to Colombia, the Andean exports quotas for sugar and bananas to Europe and matters relating to the intellectual property are still without conciliation.

However, being more specific in IP matters, the Peruvian vice minister of Foreign Trade, Eduardo Ferreyros, said that regarding the issue of medicines, there is nothing else that needs negotiating "...because everything was defined as positive for both parties, all that remains is the subject of biodiversity and geographical location".

We will keep you inform.
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Sunday, 24 January 2010

José Carlos Vaz e Dias

FIFA SETS A BROADCAST REGULATION AND GETS THE DISAPPROVAL OF THE BRAZILIANS: WILL THE PUBLIC GATHERING FOR THE 2010 WORLD CUP BE AT STAKE?


Last Thursday was a bitter day for the Brazilian owners of commercial establishments and party organizers. While pubs, bars, restaurants owners and organizers of open spaces in urban areas as well as in rural communities were setting their plans for big gatherings in June to watch the 2010 World Cup of Football, they have learned about “FIFA REGULATIONS FOR PUBLIC VIEWING EXHIBITIONS” and the new unexpected fees.

The new FIFA Regulation sets the requirement for commercial establishments to obtain a Public Viewing License to exhibit the 2010 World Cup and pay a fee of approximately US$ 2,000 to FIFA (www.fifa.com/worldcup/organisation/publicviewing/index.html).

This means that bars, pubs and organized gathering at public spaces from all over the world less South Africa will need to pay when staging the 2010 World Cup, thereby increasing their costs.

The FIFA Regulation angered the Brazilians, since it is a national tradition to watch the matches in clubs, pubs, cinemas, restaurants and/or open spaces. Further, these fees resemble the hated compulsory fee charged by the local Copyright Central Officer for Collection and Distribution (ECAD) against establishment owners that broadcast music in public.

Maybe FIFA authorities do not know much about Brazil, but the admission fee charged to view the games in public spaces are widespread and include areas such as the slams in several cities, where the admission fee support the given free food and drink. The local Indians and the “caboclos” living in the remote areas in the Amazon Forest also pay to watch the World Cup. The admission fees also guarantee free lunch, drinks and, most importantly, the electrical generator to allow the TV sets to be on.

As for my own viewpoint, as a regular citizen who loves football and that generally go to pubs with my English, Americans and Dutch friends in Rio de Janeiro, I certainly think that I will end up paying more this year for the beer and the food, in case the enforcement of such FIFA Regulation takes on.

The FIFA Regulation seems to be an attempt to reduce the ambush marketing and the free ride practices that take place during the public exhibition of the Work Cup in several countries. In Brazil, It is most frequent to see local brewery and foodstuff companies sponsoring public viewing, thereby ignoring the existence of FIFA Partners, Sponsors and National Supporters. However, it is unfair that a great majority of the viewers will have to pay extra money for FIFA to implement any attack to free riders.

Legally speaking, the Regulation is not clear in several aspects and raises question, as follows:

1) Commercial establishments that are required to obtain the license and pay the fee for the public exhibition are not well defined. While Paragraph 4 of Article 1 of the Regulation establishes that public viewing event for commercial purposes are those realized at commercial establishments and open air sponsored by companies that are not FIFA Partners and Sponsors (it does not enlist pubs, clubs and bars that do not charge specific admission fees or practice sponsorship activities to support the event), Paragraph 3 sets out that commercial establishment charging a direct or indirect admission fee and/or gain any kind of benefit for staging the event are entitled to seek the license and pay the fees to FIFA.

Since pubs, clubs and restaurants will certainly benefit in any sense for the exhibition of the World Cup, they would require the license. Wrong or right?

2) Television broadcast in Brazil is a public concession granted to TV Companies as it is in various countries. Any charges for broadcasting are permitted solely to TV companies specifically authorized, such as those rendering pay per view services or essentially pay-television operators.

3) The World Cup is about performance of the best national teams and the famous players. Therefore, FIFA is the one that needed to pay extra fees for the exploitation of image rights of the players. not the population where the “crackers” were raised. This statement expresses the general feelings of the Brazilians about the Regulation.

Therefore, Brazilian businessmen are calling for the illegality of the FIFA Regulation.

As one may see, much discussion on the FIFA Regulation down here in Brazil is yet to come, as well as in other Latin American countries (especially those who have qualified for the 2010 World Cup), such as Argentina, Chile, Honduras, Mexico, Paraguay and Uruguay.
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Thursday, 21 January 2010

Jeremy

WIPO Magazine's LA content

Latin America IP enthusiasts will be pleased to see that the current issue of the World Intellectual Property Organization's bimonthly WIPO Magazine contains two articles which focus closely on Latin American topics.

The first, "Ecuador 2009 -- a Bicentennial Celebration", is a fun item which marks the Andean republic's 200th birthday with some references to two of its most distinguished products: the Montecristi (a.k.a. Panama) hat and the much-vaunted Cacao Arriba.

The second, "The Inova Success Story -- Technology Transfer in Brazil", is penned by journalist Rachel Bueno, who explains why the technology transfer office of the university that is her employer is considered a model for other Brazilian science and technology institutions.
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