The mirrors of Macunaíma: very brief speculations, in three movements, on the nature of software as intellectual property

Abstract

Starting from the figure of Macunaíma, a character by Mário de Andrade, the text speculates on the legal nature of software as intellectual property, arranged in three movements. It notes that the legal literature is divided between a North American and a European position, taken up by historical and comparative routes. The second movement retraces the computerisation of banking relations in Brazil to argue that the technological leaps of recent decades derive fundamentally from software and not hardware. The following movement discusses property law under the traditional civil-law matrix, marked by numerus clausus and by absolute and abstract rights in rem, and proposes bringing intellectual property and rights in rem closer on the basis of the theory of the autonomy of ownership and of titles and of the processes of constitutionalisation, publicisation and repersonalisation of Private Law. It records that software, although in legal practice it receives copyright protection through registration and industrial property protection by the implemented invention patent, was assigned a distinct nature as a virtual good. It concludes that software has the nature of intellectual property without being a species of the genera Copyright or Industrial Property, standing as a genus alongside its peers.