BRAZIL Law and Practice Contributed by: Fabiano de Bem da Rocha, Gustavo Bahuschewskyj Correa, Kamille Trindade Machado and Milton Lucídio Leão Barcellos, Leão Intellectual Property
7. Data, AI and Emerging IP Issues 7.1 Data Rights and Database Protection Brazilian law does not recognise a sui generis data- base right equivalent to that provided under EU law. Database protection is instead addressed through a combination of copyright, contract law and trade secret protection. Databases may be protected by copyright under the Brazilian Copyright Law (Law No 9,610/1998) to the extent that their selection, organisation or arrange- ment reflects sufficient originality, although the under- lying data itself is not protected. In parallel, datasets may be protected contractually through licensing agreements and terms of use, as well as under trade secret law where the information is confidential, eco- nomically valuable and subject to reasonable meas- ures to maintain secrecy. With respect to scraping and data extraction, there is no specific statutory framework governing such practices. Their legality is assessed on a case-by- case basis, taking into account potential violations of terms of service, unfair competition rules, copyright infringement and data protection laws, particularly the Brazilian General Data Protection Law ( Lei Geral de Proteção de Dados Pessoais – LGPD), when personal data is involved. 7.2 AI-Generated Works and Inventorship/ Authorship Brazilian law does not currently recognise copyright protection for works generated autonomously by AI without human creative input. Copyright protection requires human authorship; therefore, in cases involv- ing AI-assisted creation, the human who exercises creative control over the output is generally consid- ered the author. Fully autonomous AI-generated outputs are unlikely to qualify for protection under the current legal frame- work. Similarly, under Brazilian patent law, only natural persons may be recognised as inventors, and AI sys- tems cannot be named as inventors in patent appli- cations. INPI follows this position strictly, in line with international practice.
Post-termination restrictive covenants (eg, non-com- pete and non-solicitation) are also used, particularly for senior roles with access to sensitive know-how. Enforceability is fact-specific and typically depends on proportional limits (time/territory/scope) and, in employment scenarios, adequate financial considera- Know-how can generally be licensed or assigned independently (including alongside patents, trade marks and technical assistance). Agreements are typically made in writing and should clearly define the know-how package (documents, training, updates), permitted use, confidentiality and IP improvements. Where the arrangement qualifies as a technology transfer agreement, parties may register it with INPI (including know-how/technology supply agreements). INPI’s current rules expressly recognise both perma- nent transfer and temporary know-how licensing. Recordal is commonly sought to produce effects vis- à-vis third parties and for administrative/tax certainty in cross-border technology transactions. 6.6 Reverse Engineering Reverse engineering of a lawfully acquired, publicly available product is generally treated as lawful in Bra- zil, especially where the information obtained is not protected by a valid patent and no confidential rela- tionship is breached. However, if reverse engineering involves access to confidential information obtained through an employment/contractual relationship (or by unlawful means), it may trigger unfair competition and trade secret liability. tion during the restricted period. 6.5 Licensing and Assignment Contractual restrictions may prohibit reverse engineer- ing (eg, in software, technical co-operation or supply agreements), and are generally enforceable if clearly drafted, proportional and consistent with mandatory rules (including consumer and competition principles). From a risk management standpoint, parties usually combine “no reverse engineering” clauses with con- fidentiality, limited-purpose use and audit/inspection mechanisms.
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