The Upper House approved on Tuesday (9) the project that alters the norms to combat copyright violation crimes (commonly called piracy). PLC 63/2012 grants more power to the judge responsible for the lawsuit, facilitates the seizure of counterfeit goods and avoids the return of pirate products to the market.
The approved text was the substitutive of the rapporteur, former senator Vital do Rêgo. It will still need to go through a supplementary shift of discussion and voting. After that, as there were modifications during the processing at the Upper House, it will return to the House of Representatives.
The project is an initiative of the National Council to Combat Piracy and Crimes against Intellectual Property (CNCP), connected to the Ministry of Justice, and has the purposes of enlarging the protection to copyrights and accelerating the punishment of the people responsible for the production and sale of pirate products.
According to the text, when the seized good is not regarded as public interest by the National Treasury, the judge has the duty to determine its destruction and not only the possibility to take such attitude, as foreseen in the Code of Criminal Procedure (Decree-Law 3.689/1941).
Currently, only the author who had his copyrights aggrieved can request the destruction of the pirated material, but the project opens this possibility to the police authority and to the Public Prosecution.
According to the rapporteur, former senator Vital do Rêgo, as it already occurs with seized drugs, the project opens the possibility of anticipated destruction of equipment, instruments, productions or reproductions which violate copyrights. The rapporteur affirms to consider that, once the due investigation has been conducted, there is no reason for maintaining the seizure deposit, if there is no rebuttal regarding its lawfulness.
Vital presented a substitutive, with suggestions to the proposal. He observed that the pirate products market has a strong relation with organized crime - gangs that practice very serious crimes such as drug dealing and people dealing for sexual exploration”.
Description per lots
Among the changes approved by the Upper House is the provision that the description of the seized counterfeit goods will be per lots and not individually and totally, as the current law determines. Besides that, it will be possible to conduct the investigation by sampling of the seized goods. Vital do Rêgo proposed that the use of seizure and investigation per lots be conducted only in case of big quantities of seized goods.
The project also establishes that the seizure term be signed by only two witnesses, eliminating the possibility of more signatures, as contained in the current legislation.
In the case of the seized goods, the project proposes that the victim of the crime be the faithful fiduciary, that is, the individual assigned by the Justice to zeal for a good during the lawsuit. At the Upper House, the text was altered so that the victim is made the faithful fiduciary preferably. According to Vital do Rêgo, frequently this enforcement may generate more economic costs to the copyright holder and cause bigger losses than the ones generated by the crime itself.
Vital also suggested that the judge may authorize the use of the seized goods by public education and research institutions during the course of the lawsuit.
The approved text also forbids that the defendant him/herself becomes the faithful fiduciary of the seizure. Another change of the substitutive approved by the Upper House is the permission of the anticipated sale of the seized goods, being the ascertained amount deposited in judicial account until the criminal action is resolved. If the defendant is acquitted, the amount will be refunded to him/her. If he/she is convicted, the disposal amount will go to the National Penitentiary Fund (FUNPEN).
Destination of the seized goods
The rapporteur also added to the project that, when the investigation is shelved for lack of determination of who the author of the crime is, the seized goods may be reverted to public education, research or social welfare institutions. For him, this is an imperative in an unequal country like Brazil.