The normative impossibility of source code patent in Brazil and the software plagiarism problem

Abstract

It is discussed the absence of the normative possibility of patenting a computer program in Brazil, along with the resulting effects of the shortage of an adequate protection to that immaterial work which cannot be compared to other artistic and literary works as it currently occurs in Brazilian legislation. Once the software itself does not have adequate protection, there is an incentive to plagiarism and counterfeiting. This submits the person of the originator of the computer program to risks and uncertainties of needing to draw upon common means to protecting their patrimony, without there being, however, guarantee of exclusivity and primacy over their intellectual work, which is the source code. By using the deductive method and the bibliographic research, the study proposes the necessity of updating the law, so that it will conform to, for example, countries with emphasis on entrepreneurship, such as the United States. The article concludes that it is not possible to achieve healthy entrepreneurship if, to people with an innovative and inventive eye, are not guaranteed by law, the exclusivity and primacy of their creation for a reasonable time lapse.