Software under international tax law and intellectual property law

Abstract

While the Brazilian legal system still debates which federative entity is competent to levy the tax on computer programs — ICMS or ISS, in the discussion of whether software is a commodity or not —, with the globalization of the economy the discussion is another one. It analyses software in its tax and intellectual property aspects at the international level, which run through treaties and international contracts, such as the Vienna Convention on the Law of Treaties, incorporated by Decree No. 7,030/2009. It deals with the interpretation of the terms of the treaties, under Articles 31 and 32 of that Convention and Article 146 of the Federal Constitution, and discusses Article 98 of the National Tax Code as to the supra-legal nature of tax treaties. It examines Brazil's 2014 ratification of the United Nations Convention on Contracts for the International Sale of Goods (CISG), in which software was included as goods, and the Brazil–Portugal agreement on intellectual property, asking whether software is income earned through licensing. It asks whether the harmonisation proclaimed in the VCLT and in the CISG appeases the interests of the parties or may harm the history, the culture of a people and its Constitution.