Whoever manufactures, imports, distributes, offers to the public, provides, or otherwise traffics in devices, products, or components, or offers to the public or provides services, which:
- i)Are promoted, advertised, or marketed for the purpose of evading an effective technological measure.
- ii)Are designed, produced, or performed primarily for the purpose of enabling or facilitating the evasion of an effective technological measure.
shall be sanctioned with imprisonment of one to five years or a fine of five to five hundred base salaries.
The penalty shall also apply to whoever manufactures, imports, distributes, offers to the public, provides, or otherwise traffics in devices, products, components, or offers to the public or provides services that have only a limited commercially significant purpose or use other than to evade an effective technological measure.
Criminal sanction shall not be imposed for the indicated conduct when it is carried out by officials of libraries, archives, and non-profit educational institutions, or non-commercial, non-profit public broadcasting entities, in the exercise of their functions.
With respect to products, services, or devices that evade effective technological measures that protect any of the exclusive copyright or related rights in a work, performance, or phonogram, only the following activities shall not be punishable, provided they do not affect the adequacy of the legal protection or the effectiveness of legal remedies against the evasion of effective technological measures:
- a)Non-infringing reverse engineering activities, with respect to a lawfully obtained copy of a computer program, carried out in good faith with respect to the particular elements of that computer program that have not been available to the person involved in those activities, for the sole purpose of achieving interoperability of an independently created computer program with other programs.
- b)Legally authorized activities, carried out by officials, agents, or contractors of the Public Administration or the Public Sector for law enforcement, intelligence, essential security, or similar governmental purposes.
With respect to products, services, or devices that evade effective technological measures that control access to a protected work, performance, or phonogram, only the following activities shall not be punishable, provided they do not affect the adequacy of the legal protection or the effectiveness of legal remedies against the evasion of effective technological measures:
- i)Non-infringing reverse engineering activities, with respect to a lawfully obtained copy of a computer program, carried out in good faith with respect to the particular elements of that computer program that have not been available to the person involved in those activities, for the sole purpose of achieving interoperability of an independently created computer program with other programs.
- ii)Legally authorized activities, carried out by officials, agents, or contractors of the Public Administration or the Public Sector for law enforcement, intelligence, essential security, or similar governmental purposes.
- iii)Good faith non-infringing activities, carried out by a duly qualified researcher who has lawfully obtained a copy, unfixed performance, or sample of a work, performance, or phonogram, and who has made a good faith effort to obtain authorization to carry out such activities, to the extent necessary, and for the sole purpose of identifying and analyzing flaws and vulnerabilities of technologies for encoding and decoding information.
- iv)The inclusion of a component or part, for the sole purpose of preventing the access of minors to inappropriate online content, in a technology, product, service, or device that is not itself prohibited under this article.
- v)Good faith non-infringing activities authorized by the owner of a computer, computer system, or network, carried out for the sole purpose of testing, investigating, or correcting the security of that computer, computer system, or network.
(Thus added by Article 2, subsection d) of Law No. 8656 of July 18, 2008.)
(Note from Sinalevi: Regarding this article, Transitory Provision II of Law No. 8656 of July 18, 2008, provides that: "...the provisions incorporated in Article 62 bis of the Law on Procedures for the Enforcement of Intellectual Property Rights, No. 8039, of October 12, 2000, shall enter into force one (1) year after the publication of this law.")