How Latin and South America Protects Intellectual Property
By: Tyler Seling.
Protecting intellectual property (“IP”) is an important aspect of any business or organization. Whether utilizing trademarks for brand development, copyrights for the works of authorship, or patents for the design or innovation it’s created, having an established IP policy is critical to succeeding in the competitive digital market. As a part of that policy, it’s becoming more and more important to incorporate international considerations such as where could or should you expand your protection to, how will that protection differ than what you are currently familiar with, and how should you adapt your policy to comply. This post takes a look at several key Latin and South American countries, and how they vary on intellectual property protection.[1]
The reason for looking at Latin and South America is simple: it has a history of being stereotyped as a lawless frontier,[2] as it once had “one of the lowest standards of intellectual property protection of any region in the world.”[3] As of 1997, Latin American manufacturers were guilty of wide-spread copying of U.S. name-brand goods.[4] However, “the region [has made] great strides in applying commonly accepted rules of law, especially when it comes to intellectual property rights and software piracy.”[5]
Argentina
Argentina is one country that has made major steps in its IP protections. In Argentina there are two separate agencies responsible for the protection of various types of intellectual property: first, there is the National Directorate of Copyright, a part of the Ministry of Justice and Human Rights; second, there is the National Institute of Industrial Property.[6] After entering into the Agreement on Trade-related Aspects of Intellectual Property Rights (“TRIPS”) in 1995 with the World Trade Organization, Argentina spent the next fifteen years amending its legislation to meet the required standards.[7] Three key developments in pursuit of meeting the TRIPS standards included the custom surveillance system for trademarks and copyright violators, preliminary injunctions to defend patents exclusive rights, and defending copyright on the internet.[8]
Brazil
Roger Correa, Compliance Marketing Director of Business Software Alliance, believes that Brazil has particularly strong protection in place against violations of the intellectual property rights of technology companies; however, his opinion seems limited in scope.[9] Much like Argentina, Brazil has two separate agencies responsible for oversight of its intellectual property regime: first, the Ministry of Culture under the Executive Secretary oversees copyright issues; and second, the National Institute of Industrial Property, under the Ministry of Development, Industry, and Foreign Trade.[10] While “Brazil has one of the strongest laws against software piracy (in Latin America),”[11] “[t]he piracy industry for physical goods is a good example of how widely disrespected intellectual property is in Brazil.”[12] While technology companies benefit from laws that make illegal users “liable for three times the value of software that is used,”[13] retail outlets such as Santa Ifigênia in Sao Paolo are known to be lucrative sources of pirated products include media content containing intellectual property.[14] In 2003, Brazil passed an anti-piracy law that was aimed to punish criminal piracy with up to four years in prison, but the problem in Brazil has been the failure to enforce the laws.[15] As a result, “Brazil has been on the U.S. Trade Representative’s Special 301 Watch List since 2007,” because of concerns with respect to high levels of counterfeiting and piracy in Brazil, including internet piracy.[16] However, local governments and certain industries have been working together to reduce IP piracy. [17]
Mexico
The final country on our list is Mexico. With the recent statements by President Donald Trump, its important to be aware that some of this information may change in the coming months as the relationship between the United States and Mexico changes. Like Argentina and Brazil, Mexico has its intellectual property governed by two distinct agencies: first, the National Institute of Copyright; and second, the Mexican Institute of Industrial Property.[18] Unlike the vast majority of the United States, Mexico is a civil law country, meaning it does not rely on case law, but rather it heavily depends on statutes to govern its intellectual property regime.[19] Another distinction in Mexico is that it only recognizes certain intellectual property that has industrial uses, such as patents, models, designs, trademarks, and trade secrets.[20] However, works of authorship, such as copyrights, are protected. The North American Free Trade Agreement (“NAFTA”) protects certain basic intellectual property rights (or minimum standards) in Mexico, the United States, and Canada, but each country may provide more protection.[21] While Mexico is considered on the forefront of emerging countries in regards to enforcement of its laws, having signed ten treaties on intellectual property rights,[22] the U.S. International Trade Administration points out there hasn’t been a major focus on intellectual property in President Enrique Pena Nieto’s three year regime, as the U.S. government and others have pushed for reforms on customs authority for inspection and seizure of counterfeit and piratical merchandise in transit.[23] However, Mexico did create the Digital IP Crime Unit in October 2015 by the Specialized IP Unit of the Attorney General’s Office to investigate internet-related intellectual property crimes. But ultimately, “Mexico is plagued by widespread commercial-scale infringement that results in significant losses to Mexican, U.S., and other IPR owners,” as issues such as legislative loopholes, lack of coordination between state and federal authorities, a cumbersome judicial process, and widespread cultural acceptance of counterfeiting had made it difficult to enforce the laws in place.[24]
While these are some of the major countries in Latin and South America that are companies are doing business, this is by no means an exhaustive list of what is happening in this region. However, these three critical players provide good examples of how Latin and South American countries are moving in the right direction, but still have a long way to go. So in making your international IP policy, remember, “[p]ick the best lawyer for the job.”[25]
[1] This post will not dive deep into global protection schemes, such as the World Trade Organization’s TRIPS Agreement, Trade-Related Aspects of Intellectual Property, or the World Intellectual Property Organization Convention; however, it may include certain bi-lateral agreements that are in effect in specific countries.
[2] Kirk Laughlin, Latin America Makes Progress on Intellectual Property Rights, Nearshore Americas (Oct. 10, 2011), http://www.nearshoreamericas.com/latin-america-progress-intellectual-property-rights/.
[3] Edgardo Buscaglia, U.S. Foreign Policy and Intellectual Property Rights in Latin America, Hoover Institution (Apr. 1, 1997), http://www.hoover.org/research/us-foreign-policy-and-intellectual-property-rights-latin-america.
[4] Id.
[5] Laughlin, supra note 2.
[6] World Intellectual Property Organization, Contact Information - Argentina, WIPO (last visited Apr. 2, 2017), http://www.wipo.int/directory/en/contact.jsp?country_id=8.
[7] Andres Moncayo Von Hase, Enforcement of IP Rights In Argentina, Mondaq (Jan. 8, 2009), http://www.mondaq.com/Argentina/x/71418/Trademark/Enforcement+Of+IP+Rights+In+Argentina.
[8] Id.
[9] Laughlin, supra note 2.
[10] World Intellectual Property Organization, Contact Information - Brazil, WIPO (last visited Apr. 2, 2017), http://www.wipo.int/directory/en/contact.jsp?country_id=23.
[11] Id.
[12] Andréa Novais, Protecting Intellectual Property In Brazil, The Brazil Business (Mar. 26, 2013), http://thebrazilbusiness.com/article/protecting-intellectual-property-in-brazil.
[13] Laughlin, supra note 2.
[14] Novais, supra note 11.
[15] Id.
[16] International Trade Administration, Brazil – Protection of Property Rights, Export.gov (Aug. 12, 2016), https://www.export.gov/article?id=Brazil-Protection-of-Property-Rights.
[17] Novais, supra note 11.
[18] World Intellectual Property Organization, Contact Information - Mexico, WIPO (last visited Apr. 2, 2017), http://www.wipo.int/directory/en/contact.jsp?country_id=123.
[19] Arochi & Linder, Understanding Mexico’s Intellectual Property Laws, Mondaq (Oct. 5, 2016), http://www.mondaq.com/mexico/x/481640/Trademark/Understanding+Mexicos+Intellectual+Property+Laws.
[20] Id.
[21] The Offshore Group, Intellectual Property Protection: China vs. Mexico, OffshoreGroup.com (June 2, 2012), https://insights.offshoregroup.com/intellectual-property-protection-china-vs-mexico.
[22] Id.
[23] International Trade Administration, Mexico – Protection of Property Rights, Export.gov (Jan. 24, 2017), https://www.export.gov/article?id=Mexico-Protection-of-Property-Rights.
[24] Id.
[25] Eileen McDermott, How Latin America Tackles Cutting-Edge IP Issues, Olivares (June, 2010), http://www.olivares.com.mx/En/Knowledge/Articles/CopyrightArticles/HowLatinAmericatacklescuttingedgeIPissues (quoting Nils Montan).