The social function of intellectual property rights in the Brazilian constitutions

Abstract

The text follows the historical trajectory of Brazilian public policy on intellectual property between 1809 and 1990, focusing on the social function assigned to these rights. It starts from the context of the Napoleonic invasion of the Iberian Peninsula, the transfer of the Portuguese Court to Brazil and the secret treaty of 1807, discussing to what extent these events conditioned the Charter of 28 April 1809, which inaugurated Brazilian patent legislation. It examines the 1809 statute, the 1824 Constitution, the 1830 statute, the movement towards internationalisation of the system and its setback, the social function of other creations, the codification of the social function and the shift from a national role to a universal function. It also addresses the 1964 Report and State action on technology transfer, reduced in 1991 by the government's liberal economic profile. It concludes that the functionalisation of intellectual property is one of the traditions of Brazilian law: the constitutions, since that of 1824, have never stated an absolute nature for these rights; ordinary statutes, from 1945 onwards, subjected industrial property to functional considerations; and the Constitution in force incorporated a specific functional clause. It notes that copyright statutes lack an analogous provision.