RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/303/Add.3
13 March 2002
(02-1293)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Brazil to follow-up questions by the European Communities
and their member States and Switzerland
Addendum
By means of a communication from the Permanent Mission of Brazil, dated 5 March 2002,
the Secretariat has received the following respons es to follow-up questions posed by the European
Communities and their member States and Switzerland, as circulated in documents IP/C/W/244/Add.1
and IP/C/W/239/Add.4, respectively.
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EUROPEAN COMMUNITIES AND THEIR MEMBER STATES1
B. C OPYRIGHT AND RELATED RIGHTS
Follow-up to response to question 2:
Please quote the Articles of Law No. 9.610 of 1998 in which the provisions corresponding
to the Articles of the Berne Convention indicated below appear:
Article 2(1) - the definition of "literary and artistic works";Article 3;Article 4(b);  and
Article 5.
Article 2(1) of the Berne Convention does not offer any definition stricto sensu  of "literary
and artistic works".  Instead, there is a list of examples, numerus abertus .  The Brazilian law uses the
same pattern as established in Article 2(1) of the Berne Convention.  So, please see Article 7 of Law
No. 9.610 of 1998, which calls forth the principle of generality of the protection to all works of the
literary and artistic domain, and does not impose that the protection is conditioned to the way andform of expression.
                                                     
1 These questions follow up Brazil's responses to initial questions circulated in document
IP/C/W/303/Add.1.IP/C/W/303/Add.3
Page 2
Concerning the provisions 2, 4(b), and 5, taki ng account that Article 2 of Law No. 9.610 of
1998 establishes that titleholders shall enjoy the protection as settled in international conventions in
force in Brazil, and that the Berne Convention, which was ratified through the Presidential Decree
No. 75.699 of 1975, establishes the obligation of national treatment and, moreover, that Article 2, 3,
and 4 of the Berne Convention are valid and in full force in Brazil, such works and titleholders areduly protected in Brazil.
Follow-up to response to question 4:
Please cite the precise provision for a rental  right, in compliance with Article 11 of the
TRIPS Agreement, in respect of:
(a) cinematographic films in Law No. 9.610 of 1998;  and
(b) computer programs in Law No. 9.609 of 1998.
Please see Article 5, IV, of Law No. 9.610 of 1998, and Article 2, paragraph 5, of Law
No. 9.609 of 1998.
Follow-up to question 8:
Please provide the outstanding response.
Already provided in document IP/C/W/303/Add.2, of 23 November 2001.
F. P ATENTS
Follow-up to response to question 34:
Having examined Articles 43 to 45 of Law No. 9.279 of 1996, the European Communities
are concerned as to how Article 43(iii) would be interpreted in Brazil.  A medicine prepared in
accordance with a medical prescription could be so prepared for many thousands of "individual
cases".  Please confirm that Article 43(iii) will be interpreted in Brazil in accordance with both
the letter and spirit of Article 30 of the TRIPS Agreement.
Yes. Article 43, III, of Law No 9.279 of 1996 is applicable only to individual cases.
Therefore, there is no sense in the questioning, since it refers to a exception that does not
unreasonably conflict with a normal exploitation of  the patent and does not unreasonably prejudice
the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Follow-up to question 35:
Although no response has been received to this question, the European Communities
have examined the provisions of Articles 68 to 74 of Law No. 9.279 of 1996 and no provisions
are immediately apparent corresponding to the wording of Article 31(a), (b), (e), (f), (j), (l)(ii) or(l)(iii) of the TRIPS Agreement.
Please cite the Articles of Law No. 9.279 in which phraseology corresponding to the
quoted Articles of the TRIPS Agreement are to be found.
As established in Article 1 of the TRIPS Agreement, "Members shall be free to determine the
appropriate method of implementing the provisions of this Agreement within their own legal systemIP/C/W/303/Add.3
Page 3
and practice", so that the provisions of Article 31 is not reproduced phrase by phrase in our law.
Notwithstanding, Articles 68 usque  74 of Law No. 9.279 of 1996 bring the scope of such Article.
Follow-up to response to question 38:
Please provide a copy of Article 229-B of Law No. 9.279 of 1996 which was inserted
pursuant to the modifications made by Law No. 10.196 of 2001.
As explained in the review by Brazil during the session of the TRIPS Council in November,
2001, the law was already notified in September 2001.
G. L AYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
Follow-up to response to question 40:
Please advise whether:(a) the Bill has been passed by Congress;  and
(b) the Bill is in compliance with Articles 35 to 38 of the TRIPS Agreement.
The Bill is still being examined in Congress.
Follow-up to responses to questions 41, 42 and 43:
The follow-up questions are the same as in relation to question 40.
Please see answer to follow-up question to Question 40.
SWITZERLAND2
A. PROTECTION OF UNDISCLOSED INFORMATION
Ad response to question 7:
Referring to the issue of unfair commercial use of data submitted by an applicant to the
responsible State Agency in the procedure for market authorisation of a pharmaceutical or of
an agricultural chemical product, please speci fy whether the responsible State Agency will
require the same amount of data from a second  applicant requesting market authorisation for a
similar or identical product as from the first applicant.
If yes, does your law provide for a time period after the expiration of which a second
applicant can refer to the data of the first applicant and will therefore not have to submit these
data in his own application for market authorisation?
Please see Article 195, XIV, of Law No. 9.279 of 1996, and Article 154 of Penal Code
concerning violation of professional secrets.  Concerning exceptions, see Article 195, paragraph 2, of
the same Law.  Furthermore, it is to be said that the period of time is not defined.
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2 This question follows up Brazil's response to an initial question circulated in document IP/C/W/303.