The progress of European Union regarding the draft law that will regulate Artificial Intelligence

It has been two years since the European Commission started to write the Artificial Intelligence Law, to regulate increasing AI technology, which is in highly evidence nowadays, since ChatGPT was launched.

 

In this sense, companies that implement Artificial Intelligence tools will have to publicize every material used to develop their systems that is copyright protected. This disposition was late created, since some commission members wanted to definitely prohibit the use of copyrights to train generative models.

 

 

Furthermore, it is being suggested that Artificial Intelligence tools be classified according to their perceived level of risk: minimal to limited, high and unacceptable. Regarding the areas of concern, it can be included biometric surveillance, dissemination of misinformation or discriminatory language.

 

The members of European Parliament agreed to take the project to the next level, when it will be discussed the final details of Artificial Intelligence Law. Once it is approved, this law will be the first one, worldwide, to regulate the subject of Artificial Intelligence.

 

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Author: Marília de Oliveira Fogaça and Cesar Peduti Filho, Peduti Advogados.

Source: União Europeia propõe novas refras de direitos autorais para a IA Generativa 

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Employee is punished in an employment claim for violating the Brazilian General Personal Data Protection Law

With the entry into force of the Brazilian General Personal Data Protection Law – Law No. 13.709/2018 (“LGPD”) in September 2020, in Brazil, many doubts arose about how it would be applied in labor relations, relations that use a massive number of personal data. With the Law, there was an obligation for employers to have more attention in how they process personal data and, also, in how they guide their employees to process personal data correctly on their behalf.

 

Initially, it should be noted that the LGPD does not overlap with the Brazilian labor law, but complements it, in order to guarantee greater protection to its data subjects. Regarding hospitals, the obligation to process data in accordance with the law becomes even more evident, considering that a large part of the data processed is considered special category data, as it involves health data. The risk becomes even greater considering that the data subjects may involve children, teenagers and the elderly, an even more vulnerable group of people.  

 

Given this scenario, in an unprecedented sentence, a nurse had his request for constructive termination dismissed due to a LGPD violation, which is why the hospital requested his discharge with cause in the employment claim.

 

 

In order to prove, in the lawsuit, the allegation that the hospital had committed faults and failed to comply with labor obligations, the claimant attached spreadsheets of the Hospitalization Management System to the suit. The hospital, in turn, claimed that this would be a very serious fault, due to appropriation of confidential documents, which the employee would only have access because of his position held.

 

According to the judgment, “the claimant violated the intimacy and privacy of third parties, natural persons who are clients of the defendant, and violated the General Personal Data Protection Law – LGPD, using special category data illegally. Also, it made the company violate the LGPD, as it was responsible for guarding the special category data of its clients. Finally, the claimant failed to comply with the express rule of the defendant, of which the claimant was duly informed.”

 

In that case, it is essential that, besides the need to implement technical and organizational security measures, it is really important the dissemination of a data protection culture internally, a right that is even considered a fundamental right by the Brazilian Federal Constitution of 1988.

 

It is undeniable that the scenario of LGPD application, in lawsuits in Brazil, is still very new. This judgment, however, demonstrated a trend of compliance with the Law, so attention will be needed for future decisions and how this symbiosis of data protection with labor relations will take place.

 

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Author: Caroline Muniz and Cesar Peduti, Peduti Advogados.

Source: Empregado viola LGPD em Pedido de Rescisão Indireta e é Punido com Justa Causa

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How music samples communities impacts in copyrights lawsuits

Updated May 31, 2023.

 

The practice of sampling is especially pervasive in music culture. It consists of in taking a small part of a song and mixing it with another one, creating a new music, but still in a way that is often possible to identify the sharp influence of the music originally embodied.

 

The practice of sampling is especially pervasive in music culture. It consists of taking a small part of a song and mixing it with another one, creating new music. However, this often leads to copyright infringement issues as the samples are usually not cleared by the original artists.

 

In recent years hip-hop artists have been finding challenges in their own community of fans. The cultural practice of the sample is identified by the fans of these artists themselves and who are dedicated to identifying the songs originally mixed, which leads them to share their knowledge in comment sessions of specialized blogs, on Youtube, collections such as “WhoSampleWho” and social networks in general. This type of content is like a treasure hunt for copyright lawyers.

 

 

In recent years, hip-hop artists have faced challenges within their own fan community. Fans dedicated to identifying the songs that were originally sampled share their knowledge in comment sections of specialized blogs, YouTube, and social networks. Platforms like “WhoSampleWho” serve as treasure hunts for copyright lawyers.

 

Interestingly, the well-meaning engagement of fans has unintentionally discouraged artists from using uncleared samples. The increased publicity surrounding the tracks has made it easier to identify the artists involved, leading to a rise in copyright infringement lawsuits.

 

It is true that a legal process of sampling, guided by specialized lawyers, can benefit both parties involved; the artist who wishes to produce a sample and the original artist whose work is being sampled.

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Author: Ana Luiza Pires, Cesar Peduti and Thaís de Kássia Almeida Penteado, Peduti Advogados.

Source: Sample Snitching: How Online Fan Chatter Can Create Legal Trouble for Rap Producers

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The use of trademarks in keyword advertising in Brazil

Updated May 31, 2023.

 

Keyword advertising has gained popularity worldwide. However, the use of competitors’ trademarks in keyword advertising has sparked conflicts between companies, and Courts from different jurisdictions have adopted varied interpretations of this practice.

 

In Brazil, although there is no specific law forbidding the use of third-party trademarks in keyword advertising, the Superior Court of Justice has ruled on several cases, establishing a consistent understanding that this behavior constitutes unfair competition. This is in line with Article 195, III of the Brazilian Intellectual Property Law, which states: 

 

Article 195 – A crime of unfair competition is committed by anyone who uses fraudulent means to divert another’s clientele for their own or a third party’s benefit.

 

 

In these cases, the Courts have ordered the immediate cessation of the unauthorized use of keywords and have awarded compensation for both moral and material damages to the trademark owners. Typically, these compensations amount to no more than BRL 20,000. However, in some instances, depending on the size of the companies involved, the compensations have exceeded BRL 50,000.

 

In view of the scenario above, it is highly advisable to refrain from using third-party trademarks in keyword advertising in Brazil, even though there is no specific prohibition on this matter.

 

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Author:  Carollina Souza Marfará, Cesar Peduti and Thaís de Kássia Almeida Penteado, Peduti Advogados.

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The growth in the number of patent applications in the world and the current position of Brazil

The World Intellectual Property Organization (WIPO) released last year’s statistics for the Patent Cooperation Treaty (PCT), the Madrid Agreement and the Hague System. 

According to the WIPOs publication, there has been a record increase in demand for protection of patentable products and processes in the last year, with a total of 278,100 new patent applications. The increase was 0.3% compared to the previous number.

Among all the countries that used the Patent Cooperation Treaty system, there was a 25% increase in applications filed in India, followed by South Korea, with the number of 6.2% more applications than in the previous year. 

According to WIPO, the number of designs included in international applications in the Hague System for the International Registration of Industrial Designs increased by 11.2% in 2022, with a total of 25,028 registrations. In this system, Germany ranks first (with 4,909 drawings registered), followed by China (2,558), Italy (2,414), United States (2,412) and Switzerland (2,178 drawings). 

 

 

Today, Brazil occupies the 61st position, having presented only one project in 2022. It should be noted that much of this increase is due to the fact that on February 2023, Brazil officially joined the Hague Convention for the International Registration of Industrial Designs. With its accession, Brazil will become the second Latin American country (after Mexico) and the 79th member to adhere to the Convention.

 

After all, what is the logical conclusion that we can reach with these numbers?

These numbers clearly demonstrates that even with the world economy facing a delicate moment, in which much is said about a globalized economic recession, what we saw in the last year is that more and more companies are concerned with protecting the products and processes resulting from their research and development.

If you are interested in protecting an invention as a patent, or extending the protection of your patent/industrial design application to other countries of interest, count with Peduti!

 

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Author: Bruno Arminio and Cesar Peduti Filho, Peduti Advogados.

Source: BRASIL OCUPA AS 30 PRIMEIRAS POSIÇÕES EM PEDIDOS DE PATENTES INTERNACIONAIS

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New Agreement Between Brazil and Denmark Enhances International IP Cooperation

The Brazilian Trademark and Patent Office (BPTO) and the Danish Patent and Trademark Office (DKPTO) signed an agreement, aiming to technically cooperate in IP, innovations and digitalization matters.

The Memorandum of Understanding involves cooperation in activities such as training courses, biodiversity, agriculture, healthcare, as well as bilateral alliances in sustainable energy matters, notably, to develop technologies able to minimize climate change effects.

This new agreement, announced on March 10th, 2023, renovates IP bilateral cooperation undertaken by previous arrangements, enhancing the exchange between companies and institutions from both nations in several areas of high impact and nontraditional trademark regulation in the EU.

 

 

The managing director of DKPTO declared that the new MoU precedes the release of funds for three additional years of cooperation, especially to benefit Danish companies performing in Brazilian market.

The BPTO celebrates agreements with other Patent offices mainly to improve the examination of patents in Brazil and to encourage the exchange of experiences between the offices. 

 

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Author: Enzo Toyoda Coppola and Cesar Peduti Filho, Peduti Advogados 

Source: Brasil amplia acordo de propriedade intelectual com governo dinamarquês

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Developing and protecting your online brand: tips for the new entrepreneur

Trademark protection is critical in establishing long-term protectable rights in every brand. This way, first of all, there are some important tips to observe regarding the naming and branding part of any new venture in Brazil. 

To start, it’s crucial to not rely exclusively on descriptive phrases. Generic terms, which describe the class of goods or services, are never protectable. And laudatory terms aren’t usually protectable either.

Also, it is important to make it clear who the legal owner of the brand should be, if a third party helped develop the brand. 

Then, there are important steps in developing legally protectable rights in the new identity to avoid ending up in legal challenges by inadvertently copying another party’s brand.

 

 

The first step is to conduct trademark clearance searches to identify competing uses, which could present a challenge to the use of the trademark. 

Besides, while most trademark offices allow owners to file directly online, including in Brazil, a good trademark professional can order a clearance search, review it with knowledge of trademark law and then provide guidance.

Most people think that the only requirement to be considered when filing a trademark is third party rights, however the Brazilian law has other twenty-two prohibitions. 

It is important to highlight that while there is no need to wait further to put the brand into use, you should immediately file trademark applications to register the trademarks.

Finally, it is highly recommended to protect your brand by filing to register it as a domain name and secure your brand across social media platforms. In this sense, you should also monitor your brand online to ensure it isn’t being misappropriated or misused.

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Author: Nathália Regina Alves Dourado and Cesar Peduti Filho, Peduti Advogados.

Source: Developing and protecting your online brand: tips for the new entrepreneur 

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The trial of the decade that might drastically upend the rules of the internet

Two major lawsuits that are being brought in the U.S. Supreme Court (Gonzalez v. Google and Twitter v. Taameneh) target Big Techs Google, Facebook and Twitter and could drastically upend the rules of the internet.

 

The cases seek to blame the platforms for recommending violent and recruiting content from the Islamic State, which would have taken directly encouraged its users to commit terrorist acts. Both perpetrators are relatives of the victims killed in attacks in France and Turkey, both of which are authored by the Islamic State.

 

It turns out that since 1996 (even before Google was created) the U.S. has legislation (known as “section 230” of the Communications Decency Act – CDA) that exempts, “protects platforms from culpability for posts, photos, and videos that people share.” Therefore, there would be no responsibility on the part of the platforms in monitoring the content made available by third parties.

 

 

The center of the family’s claims would be that Google and Twitter should have the means to prevent videos of violent and terrorist recruitment nature from circulating on their platforms and prevent the algorithm from recommending it.

 

Today digital platforms work mostly based on the algorithm recommendation system, offering content based on user personal preferences. The main point would be whether section 230 would also apply to the act of recommendation, in addition to hosting the contents. There is questioning about the impact of this decision on freedom of expression and on the entire current functioning of digital platforms.

 

The judge’s position is still unclear in determining whether there would be a direct link between the recommendations and the commission of the terrorist acts themselves, but the case is complex and promises a long discussion in the coming months.

 

It is worth remembering that in Marco Civil Law of the Internet in Brazil of the Internet has a similar position from CDA, determining that it is not the direct responsibility of the platforms filtered the contents, only when judicially determined.

 

Both are really important cases that, depending on the decision can drastically upend the rules of the internet worldwide.

 

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Author: Ana Luiza Pires and Cesar Pedut Filho, Peduti Advogados.

Source: How two supreme court battles could reshape the rules of the internet

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The rise of counterfeits in the midst of e-commerce development – guidelines for combating counterfeit in Brazil

E-commerce refers to a type of business that is completely conducted through the internet, meaning from the selection of the product, choice of delivery address and payment method [1]. Its first records can be traced back to the 1970s in the United States of America and the 1990s in Brazil [2].

 

However, despite already being a very popular and widely used type of business, it was during the pandemic, due to its social and economic impacts, that we faced a “BOOM” in the online market.

 

People, with the most diverse services and products, began to use this alternative and cheaper medium to reach consumers and thus achieve a certain income.

 

 

During this period, considerable amounts of capital were directed towards the development of online operating systems that better met this new demand, creating a faster and less bureaucratic space.

 

In response to this new movement, the Director General of the World Intellectual Property Organization, Mr. Daren Tang, in an interview with CNBC in 2022, declared that this scenario would bring many positive and negative points to industrial property rights [3].

 

In TANG’s opinion, the advancement of e-commerce would bring easier ways for people to trade counterfeit products, however, on the other hand, companies that manage these platforms should face the problem with counterfeits seriously, being in contact with national governments to monitor and deal with this situation.

 

Despite this, for TANG, what this wave still brings is the creation of new opportunities for entrepreneurs, which, for the Director General, is fantastic.

 

Going even more deeply into this issue, in 2019, the EUIPO – European Observatory on Infringements of Intellectual Property Rights, together with the OECD – Organisation for Economic Co-operation and Development, published a study entitled “Misuse of E-commerce for Trade in Counterfeits” [4].

 

In this scenario, the National Council for Combating Piracy in Brazil (CNCP) has a Guide [5] and Handbook [6] of good practices and guidance for combating piracy in e-commerce.

 

In the complete report of the study, these were some of the main conclusions:

 

  • In 2020, as a consequence of the restrictions caused by the Covid Pandemic, there was an increase of at least 20% in online commerce compared to the traditional market.
  • Statistics observed during the period from 2017 to 2019 showed that at least 50% of the detentions in the EU would be of counterfeit products, of which 90% would have been sent by mail to the country; and
  • Most of the counterfeit products sold through the online market belong to the categories of perfumery and cosmetics, pharmaceutical products, and optical products.

 

In the documents, in order to help companies that work with e-commerce platforms to create a safe and transparent environment, the CNCP advises:

 

  • Validating the Seller’s CPF or CNPJ, with their complete identification, as well as proving their existence through a bank account, digital wallet, or associated payment methods.
  • Reserving the right of the Platforms to demand fiscal documents related to the accessory obligations of the sale of their products or services, under penalty of exclusion of the Seller user who does not meet this requirement; and
  • Creating a specific notification channel for cases of illegal product sales, with permission for consumers and intellectual property rights holders to access it.

 

The CNCP also advises those who use e-commerce to take a proactive stance towards these measures, as well as to always remain vigilant, working together with government agencies for protection.

 

In addition to this, those who work with this new form of commerce can still count on various private organizations with expertise in dealing with intellectual property protection issues, which can assist in creating a Policy for the Use and Protection of rights, as well as providing all necessary support to hold infringers accountable.

 

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Author: Juliana Kaomy Mikado and Cesar Peduti Filho, Peduti Advogados.

Fonte: 

[1] O QUE É E-COMMERCE E PARA QUE SERVE? In EXAME. Available at: https://exame.com/invest/guia/o-que-e-e-commerce-e-para-que-serve/ . Access on: Mar 18, 2023.

 

[2] Dr.E-coomerce consultoria em e-commerce. Available at: https://www.doutorecommerce.com.br/criando-um-e-commerce/aprenda-origem-e-o-que-e-e-commerce/#:~:text=O%20e%2Dcommerce%20nasceu%20em,1999%20com%20o%20site%20Submarino. Access on: Mar 17, 2023.

 

[3] RISE OF E-COMMERCE MAKES IT EASIER TO SELL COUNTERFEIT GOODS: WORLD INTELLECTUAL PROPERTY ORGANIZATION. In CNBC. Available at: https://www.msn.com/en-us/money/experts/rise-of-e-commerce-makes-it-easier-to-sell-counterfeit-goods-world-intellectual-property-organization/vi-AA11xPIS . Access on: Mar 17, 2023.

[4] OECD/EUIPO (2021), Misuse of E-Commerce for Trade in Counterfeits, Illicit Trade, OECD Publishing, Paris. Available at: https://doi.org/10.1787/1c04a64e-en . Access on: Mar 18, 2023.

 

[5] Guia: Boas práticas e orientações às plataformas de comércio eletrônico para a implementação de medidas de combate à venda de produtos piratas, contrabandeados ou, de qualquer modo, em violação à propriedade intelectual. Secretaria Nacional do Consumidor Conselho Nacional de Combate à Pirataria e aos Delitos Contra a Propriedade Intelectual Ministério da Justiça e Segurança Pública – Esplanada dos Ministérios 5º andar, sala 538, CEP 70064-900 – Brasília-DF. Available at: https://www.gov.br/mj/pt-br/assuntos/noticias/conselho-nacional-de-combate-a-pirataria-lanca-guia-de-boas-praticas-e-orientacoes-as-plataformas-de-comercio-eletronico/Guiaboaspraticaseorientacoesasplataformasdecomercioeletronico_compressed.pdf Access on: Mar 17, 2023.

 

[6] CARTILHA DE BOAS PRÁTICAS E-COMMERCE. Secretaria Nacional do Consumidor Conselho Nacional de Combate à Pirataria e aos Delitos Contra a Propriedade Intelectual Ministério da Justiça e Segurança Pública – Esplanada dos Ministérios 5º andar, sala 538, CEP 70064-900 – Brasília-DF. Available at: < file:///C:/Users/Juliana.kaomy/Desktop/Cartilha%20de%20Boas%20Pr%C3%A1ticas%20no%20e-commerce.pdf>. Access on: Mar 21, 2023.

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Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.

If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.

The recordal of IP agreements before the BPTO

In Brazil, companies that transfer their technologies or sign  contracts involving licensing of industrial property rights (trademarks, patents, industrial designs and topography of integrated circuits should record the agreement before the Brazilian Trademark and Patent Office in order to pay royalties for foreign companies. 

 

The rules to record the agreement used to be very strict mainly regarding the formalities in the agreement related to legalization. However, recently, the BPTO has simplified the rules. For agreements signed abroad it is not necessary to legalize the agreement nor notarize. Moreover, digital signatures are accepted. 

 

 

Furthermore, now it is possible to pay royalties related to trademark and patent not granted in Brazil yet. Before 2023, it was possible to record the agreement but the payment was not allowed until trademark or patent grating. 

 

After the changes, we expect that the process will be faster and with less bureaucracies.

 

If you need to record an agreement in Brazil and have more questions, we will be glad in help you.

 

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Author: Laila Reis Araujo and Cesar Peduti Filho, Peduti Advogados.

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“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”

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