PROVISIONAL MEASURE NO. 482, OF February 10 OF 2010.
Dispose on measures of suspension of concessions or other obligations of the Country relating to intellectual property rights and others, in cases of non-compliance with obligations of the World Trade Organization's Constitutive Agreement.
The PRESIDENT OF THE REPUBLIC, in the use of the attribution that confers it on art. 62 of the Constitution, adopts the following Provisional Measure, with force of law:
Art. This Interim Measure has on measures to suspend concessions or other obligations of the Country relating to intellectual property rights and others, in cases of non-compliance with multilateral obligations by Member of the World Organization of the Trade-WTO, when the Federative Republic of Brazil has been authorized by the WTO Supervisory Body of Control to suspend the application, for the said Member, of concessions or other obligations under the WTO Agreements.
Art. 2nd For the effects of this Provisional Measure, consider:
Constitutive Agreement of the World Trade Organization of 1994: the treaty establishing a World Trade Organization, concluded in Marhehe on April 12, 1994, constant of the Final Act that Embodies the Results of the Uruguay Round of Multilateral Trade Negotiations of the GATT, April 12, 1994, incorporated into the Brazilian by Decree no 1,355, December 30, 1994;
II-Agreement on Aspects of the Trade-related Intellectual Property rights: the integral agreement of Annex 1C of the Final Act that Embodies the Results of the Uruguay Round of GATT Multilateral Trade Negotiations of 1994, incorporated into the legal planning Brazilian by Decree no 1,355, from 1994;
III-Understanding on Solutions of Controversies: the Understanding Relative to the Standards and Procedures on WTO Control Solutions, an integral to Annex II of the Final Act that Incorporates the Results of the Uruguay Round of Multilateral Trade Negotiations of GATT 1994, incorporated into the Brazilian legal planning by the Decree no 1,355, of 1994; and
IV- intellectual property rights: rights relating to intellectual property of:
a) literary, artistic and scientific works;
b) artists ' performers, producers of phonograms and broadcasters;
c) computer programs;
e) geographical indications;
f) industrial drawings;
g) patents of invention and utility models;
h) cultivars or plant varieties;
i) topographies of integrated circuits;
j) confidential or unpublicized information; and
k) too much intellectual property rights set out by the current Brazilian legislation.
Art. 3rd In the application of this Provisional Measure, the following may be adopted measures:
I-suspension of intellectual property rights;
II-limitation of intellectual property rights;
III-alteration of measures for the application of intellectual property rights protection standards;
IV-change of measures for obtaining and maintenance of intellectual property rights;
V-temporary blocking of remittance of royalties or remuneration concerning the exercise of rights of intellectual property; and
VI-application of rights of a commercial nature on the remuneration of the holder of intellectual property rights.
Single paragraph. For the purpose of implementing the measures of which this article is concerned, the provisions relating to the registered procedures laid down in the relevant legislation, respected the tasks of the National Institute of Industrial Property, will be considered. INPI and the Ministry of Agriculture, Livestock and Supply.
Art. 4th The measures provided for in this Interim Measmeasure can be applied to the Following Parties to the Agreement on Aspects of Intellectual Property Rights Related to Trade:
I-Part II-on patterns concerning the existence, comprehensiveness and exercise of intellectual property rights in what concerne a:
a) right of the author and related rights;
c) geographical indications;
d) industrial designs;
f) topographies of integrated circuits; and
g) protection of confidential information or protection of undisclosed information;
II-Part III-on the application of protection standards of the intellectual property rights; and
III-Part IV-about obtaining and maintaining of intellectual property rights and related interparty procedures.
§ 1st The protection of the intellectual property of computer programs, as international obligations, is it considered as an integral part of (? a? of the inciso I of the caput of this article.
§ 2nd The protection of the intellectual property of cultivars or plant varieties, as international obligations, is it considered to be an integral part of the obligations under the (e? e? of the inciso I of the caput of this article, under the terms of paragraph b? of paragraph 3 of Article 27 of the Agreement on Aspects of Intellectual Property Rights related to Trade.
Art. 5th The measures that it treats this Interim Measure will only be able to achieve applicants, holders or licensees of intellectual property rights that are:
I- natural people national of the WTO Member, in the situation described in the art. 1st, or in it domiciled; or
II-legal persons domiciled or with establishment in the Member of the WTO, in the situation described in the art. 1st.
Art. 6th The measures of which this Provisional Measure will be able to be applied alone or cumulatively, in the form adopted in resolution of the Council of Ministers of the Foreign Trade Chamber-CAMEX, in the following modes:
I-postergation of the beginning of the protection from date to be defined by the Executive Power, with consequent reduction of the protection deadline, for ongoing requests for protection of intellectual property;
II- subtraction of the protection term, by a given period of time, at any time of its duration;
III-licensing or non-commercial public use, without authorization from the holder;
IV-suspension of the exclusive right of the holder to prevent the import and marketing in the domestic market of goods incorporating patent rights, albeit the imported good has not been placed on the external market directly by the holder of the intellectual property rights or with his / her consent;
V-majoration or institution of additional on the values due to the organs or entities of the public administration for effecting property rights records intellectual, inclusive of its obtaining and maintenance;
VI-temporary blocking of shipments from royalties or remuneration relating to the exercise of intellectual property rights of national or authorized licensees in the national territory;
VII-application of commercial nature rights on the remuneration to which it makes jus the holder of intellectual property rights; or
VIII-creation of mandatory registration for obtaining and maintenance of intellectual property rights.
§ First in the case of cessation of the measures of which they treat the incisos I and II of the caput of this article, the resumption or re-establishment of protection does not matter:
I-in restitution of the term subtracted, even if the right depended on granting effective rights or act effective thereafter to cessation; or
II-in extension of the protection deadline.
§ 2nd In the case that it treats the inciso III of the caput of this article, the measure may be applied with or without pay.
Art. 7th The application of commercial nature rights of which it treats the inciso VII of the art. 6th will be approved by resolution of the CAMEX Council of Ministers by a specified period by application of compensatory percent on the amount of remuneration to which they make jus the persons mentioned in the art. 5th.
§ First is responsible for the pick-up of the commercial nature rights of which it treats the caput of this article:
I-the financial agent that effects the closing of the foreign exchange contract, when it comes to bank remittance; and
II-the physical or legal person who effecates the credit or payment without the intervenience of the agents of the national financial system or with resources held abroad.
§ 2nd The pick-up of the commercial nature rights of which it treats the caput of this article independs on any actions of an administrative or tax nature and will be due on the date of payment, shipping, or credit.
§ 3rd The lack of collecting the rights of commercial nature that it treats the caput of this article will entail:
I-in the case of spontaneous payment, after the shipment, payment or credit, the incidence of late payment and of late payment interest; and
II-in the case of requirement of craft, fine of seventy and five per cent and of the interest of late payment provided in the inciso I.
§ 4th The fine of arrears provided for in the inciso I of § 3rd shall be calculated at the rate of thirty-three hundred per cent per day of delay, from the first subsequent day to the date of the consignment abroad until the day on which your payment occurs, limited to twenty per cent.
§ 5th Interest interest provided for in the inciso I of § 3rd will be calculated at the referential rate of the Special Settlement And Custody System-SELIC, for federal securities, accrued, monthly, from the first day of the subsequent month to shipment, payment or credit until the last day of the month preceding that of the payment and one by one hundred in the month of the payment.
§ 6th The fine of which treats the inciso II of § 3rd will be required in isolation when the rights of a commercial nature that it treats this article housees being paid after shipment, payment or credit to the persons mentioned in the art. 5th, but without any moratory additions.
§ 7th The demand for trade-in-nature rights of which it treats the caput of this article, as well as of the moratory accruals and penalties, will be formalized in self-infringing self-infringement by Auditor-Fiscal of the Brazilian Federal Revenue, Observed the provisions of the Decree no 70,235, of March 6, 1972, and the five-year term Counted from the date of shipment, payment or credit.
§ 8th Verified the inadimplement of the obligation, the Secretariat of the Revenue Federal of Brazil will forward the debit to the Attorney General of National Finance-PGFN, for enrollment in Union Active Debt and their collection, observed the five-year limitation period.
§ 9th Only will be liable to rein in the values collected in charge of collection of rights of which it treats the caput of this article in the cases of undue payment or in value greater than due, observed the procedures set forth by the Registry of the Brazilian Revenue Officer.
§ 10. Are the values collected under the commercial nature right of which it treats the caput of this article to be registered as originating and classified revenue in the category of?Revenue stemming from Suspension Measures of Grants from Intellectual Property Rights? and will be earmarked for the Ministry of Development, Industry and Foreign Trade, for application in foreign trade actions, as guidelines approved and set out in resolution of the CAMEX Council of Ministers;
§ 11. The values collected in the title of a fine of mora and of trade, as well as the interest of mora, of which they treat the § § 3rd and 7th of this article, shall be earmarked for the Special Fund for Development and Improvement of the Supervisory activities-FUNDAF, instituted by art. 6th of the Decree-Law no 1,437, of December 17, 1975.
Art. 8th During the duration and in the limits set for the application of any of the measures of which you treat this Provisional Measure, stay suspended, for the people of which it treats the art. 5th:
I-the application of the principle of national treatment and the principle of the nation more favored, fully enforcing discriminatory treatment application under the Understanding Relative to Norms and Procedures on WTO Controls Solutions;
II-the rights conferred on the holder or applicant of intellectual property rights pursuant to the current intellectual property law, of which it treats art. 4o;
III-the rights conferred for the beneficiaries or applicants of the protection against the unfair commercial use of information relating to test results or other undisclosed data submitted to the competent authorities as a condition for approving or maintaining registration for the marketing of products; and
IV-the attainment and maintenance of intellectual property rights and interparty procedures related.
Single paragraph. The application of the measures provided for in this Interim Measure does not matter any type of remuneration or compensation relating to the exercise of rights by third parties, resamped the cases of licensing or non-commercial public use remunerated without authorization of the holder.
Art. 9th The application of measures provided for in this Interim Measure shall be preceded by preliminary report of CAMEX, with minuta of the measures and the respective statement of reasons.
§ 1st interested parties will have twenty days deadline to submit demonstration, the departure from the date of the publication of the preliminary report in the Official Journal of the Union.
§ 2nd Elapsed the deadline provided in § 1st, the Council of Ministers of CAMEX will decide on final character, unless it is deliberated by the application of measure not contained in the preliminary report, occasion where the procedure described in this article is to be repeated.
§ 3rd In the implementation of the measures of which it treats this Provisional Measure, they may be assessed proposals put forward by the Brazilian sectors that requested the recourse to the WTO's controversies solution mechanism, which originated them.
Art. 10. The measures of which it treats this Interim Measure will have a definite deadline and will only be able to be adopted as long as it will endure the authorisation of the WTO's Controlling Body of Solution.
Single paragraph. The re-establishment, within the framework of the WTO, at any time, of concessions or other suspended Brazilian obligations:
I-no matter the restoration of rights that have been affected by the application of the measures; and
II-will not harm the legitimate interests of third parties arising from affirmative contracts or authorized uses by the Executive Power, during the application of measures adopted on the grounds of this Provisional Measure.
Art. 11. The Executive Power will establish mechanisms to monitor the application of the measures adopted on the grounds of this Provisional Measure.
Art. 12. This Interim Measure shall come into force on the date of its publication.
Brasilia, February 10, 2010; 189th of Independence and 122nd of the Republic.
LUIZ INACIO LULA DA SILVA
Celso Luiz Nunes Amorim