Month: March 2021

SOFTWARE TAXES IN BRAZIL: ONLY MUNICIPALITIES ARE ALLOWED TO TAX SOFTWARE SERVICES

The tax regime applicable to software transactions in Brazil had raised controversies for a long time, because the federal government and each state or municipality have their own discretionary powers to enact their laws and regulations for collecting their taxes.

In this context thecompetence’s conflict between the ICMS and the ISS over new technologies of software supply, it is worth clarifying that the ISS is a municipal tax levied on the import and national provision of services provided by companies, legal entities or self-employed professionals, while the ICMS is a state tax levied on the import of products and the circulation of products, that is, applicable to products.

Before the taxation of payments for software could be varied depending on whether the transaction is characterised as the licence of a copyright, the sale of merchandise or the provision of services.

Thus, the decision was extremely difficult to identify a correct taxation of the software that caused the trial to be postponed several times

On February 18, finally the ministers of the Supreme Federal Court (STF) decided by majority vote that the Municipal Tax on Services (ISS) affects the licensing or right to use software because it is a service.

According to the STF, the taxable event of the ICMS is the transfer of ownership of the asset, which does not apply in cases of licensing or right to use software characterised as intangible goods.

Nonetheless, in the next session will be addressed it is still awaiting a decision about if this new understanding will be required only after the date of publication of the minutes of the judgment of the case or if it will also be valid retroactively, which would legitimize, for example, the recovery of amounts unduly paid to state tax authorities.

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Author: Sheila de Souza Rodrigues, Associate Lawyer at Peduti Advogados.

Source: STF conclui julgamento sobre disputa tributária em software (STF concludes the judgment on software tax dispute)

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“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”
“Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.”

#business #SaaS #taxlaw Software technology

The importance of copyrights on the music industry: the Taylor Swift case

Can you imagine creating a whole body of artistic projects and being prohibited of reproducing it? That’s exactly what is happening with the singer Taylor Swift, all because of a conflict related to copyrights.

It is known that there are two types of copyrights on the American system: the first, the musical work copyright, that is basically the musical composition – covering underlying music and lyrics of a song – and the sound recording copyrights, that covers the actual recording of a song, also known as a master recording of a musical composition.

While the singer is the owner of the musical work copyrights of her first six albums, Big Machine, her last record label, is the owner of the sound recording copyrights, which means that there are certain limits to the singer’s rights on the soundtracks.

The Section 106 of the U.S. Copyright Act itself relates to that, providing exclusive rights to the owner of the copyright:

“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following (…)

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

Analyzing the Law, it is clear that the record label, as said by the 6th item above, is responsible for the authorization for Taylor Swift to perform the soundtracks of her first six albums publicly by means of a digital audio transmission, which can definitely difficult the singers’ events and decisions on her songs.

The Record Label also receives a part of the soundtracks’ streaming profits.

Taylor Swift is now rerecording her oldest songs as new masters in order to have full rights on the soundtracks.

This case shows how important it is to know and protect every aspect of the copyright.

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Author: Maria Luiza Barros da Silveira, Junior Associate at Peduti Advogados.

Source: Seeing “Red”: Taylor Swift and the Dueling Copyrights in a Song

Source: Taylor Swift: entenda por que cantora refaz álbuns com cópias de si mesma

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#copyright #musicindustry #taylorswift

The use of a third-party trademark in sponsored links

Sponsored links are used to divulge products and services, in websites, social medias etc. This service is paid, for a single fee or per click. Many companies use this kind of marketing because it is a way to divert the customers of others.

How?

They use a third-party trademark like a key word, when the customers search for this key word, the sponsored link appear. If the customer clicks in this link, they think that is a page of a certain company with prestige and good reputation, but in fact it is a page of a competitor company. This practice constitutes unfair competition.

Unfair competition is any act or practice in industrial or commercial activities contrary to honest practices, for example, uses fraudulent means to divert, for his own or a third-party benefit, clients from a third party.

In Brazil we have many judicial decisions published by the Courts determining competitors to cease the use of the third-party trademark in sponsored links.

Besides, the judicial decisions determine to the competitors pay damages to the trademark owners.

Because of that, if you want to contract a sponsored link service, it is important to abide the local trademark laws, and do not infringe third party trademarks. Use available key words.

How to protect my trademark?

If you are a trademark owner concerned with the use of your trademark in sponsored links, we inform you that you have the right to protect your trademark from dilution and parasitism, as well as its prestige and reputation. It is possible to be compensated for the damages suffered, pursuing a legal action.

We emphasize that is important to be assisted by professionals specialized in intellectual property in these cases. Our office monitors your trademarks and possible violations. Contact us for more information.

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Author: Luciana Santos Fernandes, Junior Associate at Peduti Advogados.

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#keywords #sponsoredlinks #trademarks