Enforcement Case Study in Post-TRIPS Argentina and Brazil

Introduction

Because of the obligations undertaken by WTO (World Trade Organization) Members in the TRIPs Agreement (Trade Related Aspects of Intellectual Property Rights) of 1995, Argentina and Brazil initiated a long and complex process to comply with the minimum standards set by this Treaty. Such a process required new national legislation and the pertinent implementing regulations, administrative reorganization of IP Agencies, and the crucial judicial decisions interpreting and enforcing the new minimum IP standards. In spite that more than 10 years have elapsed since the Agreement was ratified, the modernization process is not completed, due to a variety of reasons including among them ideological biases against the role  that IP plays in development.  Although progress has been made, IP holders face many uncertainties as to whether TRIPs minimum standards will be enforced.

We will first briefly review TRIPs basic obligations, in particular those applicable to changes that Argentina and Brazil had to introduce as a result of the Treaty. We will afterwards provide insights into the new legislation approved and the controversies arising from same, the restrictions that continue to hamper the implementation process, including among others the legal loopholes, administrative delays, restrictive interpretations, judicial developments, and measures at the borders.

We will encourage understanding and reflection on the several pending issues through the analysis of the precedents and controversies and by means of adequate questions.

We anticipate our conclusion in the sense that protecting IP in Argentina and Brazil is a complex matter that still requires a lot of efforts that are worthwhile to be undertaken to foster creativity, contributing to narrowing the technology gap and promoting economic and social objectives…

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