Industrial property rights set to lose constitutional status


Following the proposed amendments to the Constitution 1999 announced by President Hugo Chávez Frías in August this year, a congressional committee has proposed to remove the concept of 'intellectual property' from the Constitution to eliminate the rights linked to the "economic derivations" of cultural creation.

IP rights have been constitutionally recognized in Venezuela since 1830. Moreover, the Paris Convention for the Protection of Industrial Property, the Agreement on Trade Related Aspects of Intellectual Property Rights and Andean Community Decision 486 on a Common Industrial Property Regime guarantee the protection of industrial property rights in the country. However, the proposed amendments will bring about a significant change to the industrial property protection system.

The aim of the proposed amendment to Article 98, Title III, Chapter VI of the Constitution is to protect the creation of cultural goods. The government aims to ensure that all individuals benefit from cultural creation.

The new Article 98 (which was approved by Congress on October 29 2007 and will be subject to referendum on December 2 2007) reads as follows:

"Cultural creation is free. This freedom includes the right to enjoy cultural diversity, and to produce and disclose creative, scientific, technical and humanistic works. The author's rights must also be protected by law. The state recognizes and protects everyone's rights freely to take part in the community's cultural life, enjoy the arts, and participate in scientific and technological progress and the resulting benefits."

The changes to the industrial property system, if approved, will be as follows:

  • Rights in patents, trade names, trademarks, slogans and geographical indications will no longer have constitutional status. Industrial property rights will be considered as 'concessions' granted and guaranteed by the executive and governed by national laws.

  • Industrial property rights owners will no longer be able to apply for extraordinary constitutional protection.

  • The term 'intellectual property' will be eliminated from the wording of Article 98, since industrial property rights will no longer be the property of the owner. However, copyrights will still be included in the Constitution.

  • International treaties to which Venezuela is a signatory will no longer have constitutional status. Instead, they will be applied directly by the national legislation.

Consequently, should the amendments be approved, industrial property rights will still be protected in Venezuela, but not at a constitutional level.

Daniela Rojas P, Estudio Antequera Parilli & Rodríguez, Caracas

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