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Read less. Download now Download to read offline. More Related Content. February 15, To Mr. Stanford K. McCoy Assistant U. Its membership is comprised of trade associations from the agribusiness and manufacturing sectors, as well as leading Brazilian companies, most of which are invested in the United States. CEBEU is a bilateral organization that provides a high-level private sector forum for the business communities of both Brazil and the U. CNI is the umbrella manufacturing sector organization in Brazil. Created in , the Confederation is comprised of 27 Federations of Industries in all Brazilian states and the Federal District, and over 1, sectoral trade associations representing more than , companies. Evidence for that is provided in the Annex to this letter. It is no longer perceived by its government and private sector as a self-imposed and unfair burden to its right to development, but both as an intrinsic value of the Brazilian society and an opportunity. Therefore, the undersigned business associations respectfully request for the third consecutive year that the USTR removes Brazil from the Special Watch List. We look forward to working with the USTR and we are available at any time for clarification of any issue raised in this submission. ANNEX 1. These rules comprise thus a three-pronged cumulative test. Finally, Section requires that the USTR takes into account the history of intellectual property laws and practices in the foreign country 19 USC b 4 A , as well as efforts of the United States, and the response of the foreign country, to achieve adequate and effective protection and enforcement of intellectual property rights 19 USC b 4 B. Brazil does not incur in any of the abovementioned situations. On the contrary: on one hand, there is a growing consensus within the Brazilian society regarding the importance of the protection and promotion of IPR and the role of innovation in economic and social development. On the other, the Brazilian government has been responding to this demand by making significant progress in its legal framework and regulatory structure, law enforcement efforts, and international cooperation initiatives, as described below. Brazilian Society Consensus There is a growing consensus within the Brazilian society regarding the importance of the protection and promotion of IPR. Accordingly, acts, policies, or practices that infringe these rights are perceived and treated as unfair and illegal. The recognized negative consequences of IPR violations are also true to the Brazilian experience: they disrupt legitimate markets, contributing to unemployment and underemployment; feed the informal economy; reduce government tax revenues; finance organized crime activities; and undermine the development of a strong knowledge-intensive creative economy. Therefore, actions to fight counterfeiting, 3. It is worth noting that IPR protection is no longer pursued as a standalone Administration effort, but rather as a long-term far-reaching governmental policy supported by Brazilian service businesses, manufacturers, farmers, workers, and consumers. In addition, there is a strong and increasing political will to strengthen the instruments that adequately and effectively protect IPR by improving the Brazilian legal framework and regulatory structure, law enforcement efforts, international cooperation initiatives, and activities supported by the private sector. There is also a general sense that permanent improvements are necessary in order to keep up with the ever-changing pattern of IPR infringement. Concrete results from the efforts and resources that have been applied so far to fight those illegal activities clearly indicate that Brazil is on the right track. As a corollary, Brazil has been putting great emphasis in strengthening its IPR system so as to create a friendly environment that stimulates innovation. In this sense, the Brazilian Innovation Act, inspired by the U. Guideline 8 sets a goal to transform Brazil into a scientific and technological powerhouse in the next few years. Brazil is strategically committed to promoting innovation as a means to increase its private sector competitiveness as well as to achieve its social and economic development goals. Brazilian policymakers widely recognize that IPR protection and promotion are essential components of any modern innovation policy. In fact, in several aspects it adds to the minimum standards agreed to internationally. It is also worth noting that Brazil has forgone its TRIPS-related special and differential treatment SDT rights embodied in Article 65 of the Agreement and implemented it along with the developed countries in — long before the January 1st, deadline for developing countries and the deadline exception for specific technology areas. In addition to its successful past achievements, Brazil has been putting great effort in improving its own domestic laws. It is currently being discussed under urgency status rules; 5. It is currently being discussed under priority status rules; iii. It must be said that IPR-related congressional action in democratic societies takes time due to the complexity of issues being considered, as well as the vast number of stakeholders involved. Differently from the U. Therefore, a number of bills date from the end of the s to the mids. In the United States, legislation that sometimes takes decades to be completed does not have to face the same situation as each Congress lasts for only two years, and bills need to be re-introduced. In this context, public consultations were held during and public discussions are currently underway so as to analyze proposals for the modernization of the federal copyrights legislation. Initiation of legislative procedures to amend the Act is expected to take place within the next months. On top of the abovementioned solid legal framework, Brazilian judicial courts have been consolidating the adequate and effective protection of IPR by interpreting the domestic legislation in a broad manner. Justice TJSP has recently awarded a decision finding that commercial establishments, such as shopping malls, are responsible for monitoring and supervising the activities conducted by their associates, and therefore should be liable for damages when products infringing IPR are sold in their stores TJSP, 5th Chamber, Appeal N. In addition to such developments, in INPI has also v received further resources in order to provide more efficient services through the enactment of Law , the so-called INPI Staffing Act of ; and vi published guidelines and a practical handbook for the analysis of trademarks aiming at enhancing transparency, predictability, and uniformity in decision making. As a result, INPI has been successful in reducing the backlog for trademarks and patents. A similar status is only held by fourteen intellectual property offices around the world. Finally, it should be noted the remarkable work INPI develops in conjunction with the Judiciary in the fields of capacity building, provision of IPR information, and participation in judicial proceedings conducted by IPR specialized district courts. As part of the campaign, numerous seminars and workshops have been organized in cities all over Brazil, and educational material has been provided to public officials at different levels of government. According to the Agency, 53, units of counterfeit and smuggled drugs, and In these cases, while INPI is in charge of analyzing the patentability criteria novelty, inventive activity, and industrial applicability , ANVISA limits itself to conduct a public health risk assessment. Although both intervene during the pharmaceutical patent application process, their roles differ. Justice MJ. The Council, consisting of members from both public and private sectors, issues guidelines to the formulation of a national plan against piracy and other IPR violations. Partnerships with internet providers: to prevent works protected by copyrights to be distributed without proper legal authorization. Such proposal has already been approved by the Brazilian Attorney General's Office; iv. Training and capacity building seminars: for federal, state, and local government officials as well as for university students. In , the program reached 1, officials and students; v. The initiative was approved by the Council and is currently under development; and vi. Technical cooperation agreement with ANVISA: to exchange information and fight pirated and counterfeit goods subject to sanitary surveillance. Regulation of Compulsory Licenses Finally, a word must be said about the regulation of compulsory licenses, an issue that has been raised by interested parties in the context of the Special process. This particular provision of the Brazilian law is both legal and legitimate. Furthermore, Brazil has demonstrated its good faith and non-abusive practice in handling situations related 9. To date only one compulsory license has been issued. Article 8 further asserts that in formulating and amending their laws and regulations, countries may adopt measures necessary to protect public health and nutrition. It establishes the requirements for the use of such mechanism and states that the right can be invoked in cases of national emergency or in circumstances of extreme urgency, among other situations. In addition to the legal basis of Brazilian government actions when taken in accordance with international agreements, it is also important to stress that Brazil has discussed the compulsory licensing mechanism use in good faith and in a non-abusive way. It is not a deceiving justification to try to avoid international commitments on IPR. Department of Labor DOL in for its notable success. Notwithstanding, the Brazilian private sector has also been ready to act as a facilitator whenever its engagement may help the Brazilian government and other interested parties in finding creative solutions to issues related to compulsory licensing. Finally, it is important to note that even members of the U. Resolution H. Law Enforcement by the Brazilian Federal Government Significant law enforcement efforts by the Brazilian Federal Government are yielding increasing concrete results over the years. Judicial Bodies Enforcement improvements are also being pursued with regard to judicial activities. Among its priorities is the assurance of expeditious and deterrent sentences. Border Enforcement by the Brazilian Customs Due to the relevance of border enforcement, especially in combating IPR violations and other forms of unfair trade, Brazil is putting great effort in enhancing its border controls. Its objectives include: i to establish standards that enhance the security and facilitation of global supply chains; ii to enhance the role and capabilities of customs to meet the challenges and opportunities of the 21st century; and iii to strengthen cooperation between customs administrations to improve their capability to detect high risk consignments. Besides improvements in the legal framework, Brazil is also devoted to modernize its customs structure. Moreover, the RFB has also established stricter technical and operational requirements to allow the functioning of areas where transactions, storage and customs clearance take place. The new standards contribute to a more efficient border control in accordance with WCO standards. CNCP has also met with Delegates of the Civil Police and of the State Secretaries of Public Security to identify bottlenecks in the Brazilian criminal IPR legislation with a view to drafting a comprehensive bill to be sent to the National Congress proposing changes to current statutes. Following the training program, the federal district registered the largest seizure 5 million of counterfeit CDs and DVDs in just one day, in addition to arrests of around 30 members of the Chinese mafia. International Cooperation by the Brazilian Federal Government The Brazilian Federal Government has been pursuing multiple actions on the international cooperation front to protect and promote IPR, emphasizing approaches in three areas: i educational; ii economic; and iii repressive. In and , Brazil intends to strengthen its cooperation with strategic partners, as well as to foster closer ties with other developing countries. In this sense, Brazil has actively participated in governmental bilateral working groups to address IPR protection and promotion, having held meetings with the following strategic partners: i. China: The first informal meeting of the Brazil-China Working Group on Intellectual Property was held in October , focusing on technical cooperation to combat piracy and counterfeit, and on the implementation of educational In April , the Working Group was officially established, and annual meetings were agreed to under an MOU signed by both countries. The goals of the MOU are: a to strengthen the bilateral cooperation on IPR issues; b to expand coordination in multilateral forums; and c to exchange information on IPR national laws and regulations. In the two following meetings held by the Working Group the parties exchanged information on specific cases regarding IPR compliance, and emphasized that, besides further repressive action, the bilateral fight against piracy and counterfeiting should also encompass economic and educational measures; iii. The last meeting took place in December , when Brazil reiterated its concern with the infringement of artists copyrights in EU countries; and iv. Japan: Brazil has also been meeting with Japan since Last year, both countries engaged in cooperation projects to enhance IPR enforcement. The MOU, which is currently under appreciation by the Paraguayan Congress, seeks to enhance cooperation and coordination between authorities from both countries involved in fighting IPR crimes i. Once the agreement is ratified by the Paraguayan Congress, Brazil and Paraguay expect to conduct more efficient operations to prevent, investigate, and halt such violations, as well as to identify, track, block, and recover assets connected to them. As a consequence, the Brazilian Federal Government expects to encourage informal traders — the so-called 'sacoleiros' — to formalize their businesses, and reduce unfair and illegal trade practices, including IPR violations. Finally, international cooperation by the Brazilian Federal Government also includes the signature of cooperation agreements on innovation with France, Japan, South Korea, and Sweden. The goal is to provide government officials with valuable information from the private sector that will assist them in the fight against IPR infringement and other illegal and unfair trade practices. Moreover, the initiative allows the private sector to better understand the challenges faced by the government, and, consequently, enhance its actions. In and , these initiatives were held exclusively for the purpose of the training of customs agents. In this event, entities from the public and private sectors from Brazil, Argentina, Paraguay, and Uruguay discussed cooperation opportunities to fight piracy, counterfeiting, and irregular imports. As a The program has recorded complaints within one year. Because of the indisputable need to spread information about the harmful consequences of piracy and other IPR violations, AMCHAM, with the institutional support of CNCP, has implemented a project to educate students from age 7 to 14 Projeto Escola Legal ,consolidating its belief that educational measures are essential to legal compliance. The project focuses primarily on the importance of the IPR concept, highlighting the problems caused by piracy. In , the project was implemented in 5 cities and covered 81 schools, reaching 13, students and 1, educators. Since , the initiative has already reached around 35, students. The initiative is aimed mainly at eradicating irregular book photocopying in universities. Until August , the Department removed 42, Internet links that allowed illegal downloads of books. This program is the largest dissemination and capacity-building initiative for strategic use of IPR in Latin America. The program establishes a positive agenda to influence and raise the profile of topics related to IPR as well as fighting piracy in Brazil. Its activities are based on two main issue-areas: economy and education. Economy: the goal is to turn business knowledge and innovation into assets of legally protected economic value. This way, intangible intellectual property assets can be marketed with due legal security, expanding the protection available to investments and making it possible for businesses to have a return on their invested capital. Education: the goal is to make different segments of Brazilian society aware of the importance of IPR. The protection of intellectual property rights is directly related to the generation of wealth by organizations that invest in creativity and innovation. Therefore, actions are aimed at making Brazilians more aware of aspects related to the production, protection, respect, and management IPR. In its first year of implementation, the initiative achieved major results at the national level: i. Publication of three IPR guides using appropriate approaches and languages for specific audiences: business leaders, journalists, teachers, and elementary and high-school students in Brazil; ii. Enrollment of over 15, young people and adults for online free-of-charge courses on IPR iii. IPR training of almost employees of manufacturing business associations. The violation of international law or agreement deems to exist only if the United States and the foreign country are parties A barrier deems to exist if the use of laws, procedures, practices, or regulations constitute discriminatory non-tariff trade barriers 19 USC d 3 B. Finally, Section requires that the USTR take into account the history of intellectual property laws and practices in the foreign country 19 USC b 4 A , as well as efforts of the United States, and the response of the foreign country, to achieve adequate and effective protection and enforcement of intellectual property rights 19 USC b 4 B. Brazil does not incur in either of the situations abovementioned. From to , Brazil implemented an aggressive unilateral liberalization strategy. The current nominal average tariff in Brazil is In addition to the reduction of tariffs, the Collor de Mello Administration, in particular, eliminated all discriminatory non-tariff barriers that existed. Brazilian commitments under the Uruguay Round of Multilateral Trade Negotiations, concluded in , further strengthened the reform, providing the necessary stability for domestic and foreign companies engaged in trade and investment activities with Brazil. WTO Doha Development Round The factual basis demonstrates that the Brazilian average tariff, as applied, is considerably lower when compared to other developing countries. However, in the context of the Special process some interested parties in the United States complained of high tariffs applied to certain products. Although the Brazilian private sector considers it a legitimate claim from an economic perspective, it is outside the scope of Section of the Trade Act of In the case of tariffs, only a violation of international agreements to which both the United States and Brazil are parties falls under this Section. According to the letter and spirit of this provision, Brazil joined the United States in launching the Doha Development Round, in November According to the Doha Declaration mandate, reduction of agricultural and non-agricultural tariffs and non-tariff barriers are one of the main goals of the current negotiations. Therefore, Brazil and its private sector encourage all interested parties to faithfully engage in such negotiations so that a mutual acceptable and balanced outcome may be achieved, thus increasing market access on a reciprocal basis. Since , Brazil has demonstrated increasing flexibility towards an ambitious and balanced Doha Round agreement with unequivocal support from its private sector. In July , the country was the first to accept a proposed core issues agreement presented by the WTO Director General, Pascal Lamy, during the Group of 7 informal negotiations. Chamber of Commerce, the leading business associations in the United States. Unilateral Tariff Suspension Mechanism In addition to the ongoing trade negotiations, Brazil consistently operates a unilateral tariff suspension mechanism that can be used by any domestic or foreign company. Most of them have a direct and positive impact on U. Domestic Taxes In the context of the Special process some interested parties also highlighted that the domestic tax system of Brazil hinders market access. Again, although the Brazilian private sector recognizes it as a legitimate concern from an economic perspective, it falls outside the scope of Section of the Trade Act of In managing its tax system, Brazil does not violate any international agreement to which the country and the United States are parties to, nor does it create discriminatory non-tariff barriers. In fact, Article of the Constitution of , in regulating the power to tax, dictates that In other words, the Constitution provides for a national treatment clause that is valid both with regard to goods for export and import, and to goods from different regions within the country. Nonetheless, the Brazilian private sector recognizes that the tax burden is an important issue both to domestic and foreign companies. The Lula Administration has twice proposed tax reforms. Bilateral Engagement Finally, it is important to highlight that Brazil has, for many years, engaged bilaterally with the United States in good faith to address trade and investment concerns raised by American and Brazilian companies. This commitment can be seen in the number of dialogues and institutional mechanisms created in the last decade, solely focused on trade and investment policy, trade and investment promotion, and trade and investment facilitation issues. In addition, Brazil and the United States are reported to be investigating the possibility of negotiating a bilateral Trade and Investment Framework Agreement TIFA that would increase the channels to address trade and investment concerns, including an increased participation of the private sectors of both countries. According to them, the country would be engaged in undermining international law related to IPR protection and promotion. This concern has also been shared by some agencies of the U. As in the United States, the trade policy-making process in Brazil is contentious. Different agencies within the Brazilian government and different interest groups in the Brazilian society, including businesses, consumers, social movements, indigenous people, and nongovernmental organizations, have natural discrepancies in their approach to the wide range of IPR-related issues. It is important to point out that since Brazil seems to have adopted a more moderate approach in international negotiations, demonstrating openness to engage in a concrete discussion on the much needed reform of the WIPO Patent Cooperation Treaty PCT. The Brazilian private sector appreciates the more moderate stance taken by the Brazilian government in international negotiations, but notes that they do not fall under the scope of Section of the Trade Act of Moreover, international negotiations fora are what they intend to be: spaces where countries can freely exchange views and discuss changes in law and approaches to issues of concern for the parties involved. They must not overshadow concrete steps taken by the Brazilian government and its private sector in the last decades. The Bali Action Plan of , in particular, provides for negotiations related to transfer of technology, and some developing countries have introduced proposals that try to address the issue by adapting the current intellectual property protection regime to new challenges faced by both developed and developing countries in taking action to mitigate climate change and adapt to it. As stated before, the Brazilian private sector believes that this is a legitimate exercise. Congress, it considers it necessary to better explain its own position on the issue. It is important that international commitments, in incorporating mechanisms to foster the transfer of technology, protect intellectual property rights. The protection of these rights is crucial to the reduction of technology cooperation risks devoted to low-carbon innovation. At the same time, incentives for technology transfer to medium, small and micro companies shall be created, and shall take into account respective implementation capacity of these companies. The low-carbon technology transfer models in discussion shall achieve this goal in conformity with international trade law. More recently, investments in improving the materials used in the productive process, such as biomaterials, deserve special mention. This thermoplastic resin will contribute toward the capture of 2. The bioplastic is already being marketed, replacing products which generate higher emissions in different sectors, such as automobiles, toys, packaging, etc. At the same time, and particularly to developing countries, effective access to technologies that maximize global GHG mitigation efforts has to be secured. A number of American companies and business associations have repeatedly discussed this issue with the Brazilian government, as well as with the Brazilian private sector. The matter at stake is not whether Brazil exercises its rights, but whether the United States will comply with succeeding rulings on the inconsistency of its domestic support programs with the WTO covered agreements. Nonetheless, the Brazilian private sector believes that the Brazilian government has shown great flexibility in trying to solve the dispute, including through the disposition of finding a solution in the framework of the Doha Development Round. Moreover, it made preparations to implement its right to suspend concessions or other obligations in a fair, equitable, and transparent manner, including through the use of public consultations by CAMEX. The Brazilian private sector has also been engaged in exploring creative solutions to the dispute. The Law provides the necessary legal basis for the implementation of cross- retaliation. However, it does not mandate such measures, but only implements a right conferred to Brazil by the DSU since i. Furthermore, the Law is not a blank check to the Brazilian Executive Branch. The Law does not hinder the possibility of finding a mutually acceptable solution to the dispute through dialogue and negotiation. The Brazilian private sector, as well as the Brazilian government, expects that the U. The establishment of the Special process by the USTR under congressional authority seems to reflect this reality. IPR policy, particularly at the international level. Of these 28 disputes, the U. These facts seem to indicate a level of inconsistency between U. This inconsistency tends to erode the legitimacy of unilateral reviews such as those conducted under the Special process. On the contrary, it seems that these countries, including Brazil, were purposefully excluded from these negotiations. Coupling this with the fact that ACTA negotiations were surrounded by secrecy, that its obligations raised concerns regarding constitutionality even among members of the U. In fact, plurilateral agreements negotiated by a small like-minded group of countries tend to be This inconsistency again tends to erode the legitimacy of unilateral reviews such as those conducted under the Special process. Finally, a word must be said about legality. The DSU states in its Article In addition, DSU Article When read in conjunction, DSU Articles This is a fact that has to be taken into consideration. Download now.

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