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Argentinean Intellectual Property Act. An awaiting amendment correcting a proper answer.

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Vincent
AutorGustavo Azpiazu
CargoAbogado. Master en Derecho Bancario de la UBA.

Since the beginning of the massive commercialization of software products at the beginning of the 80's, Argentine software pirates were routinely sued by software makers and distributors.

But on December 23, 1997, the Argentine Supreme Court handed down an astonishing decision that decriminalizes software piracy.

That decision, in spite of its impeccable legal reasoning, severely complicates the daily fight of the Information Technology (IT) industry against those who would illicitly benefit from the programs the industry develops. While there are solutions to the immediate problem, the result is that the decision terrifies local and foreign software makers and distributors alike.

Lets consider, step by step, the material aspects of the case's reasoning and its implications; and let us look at the larger questions it poses regarding the future of the IT industry in Argentina.

Autodesk Inc., the U.S. software firm, took legal action against a local firm that made unauthorized copies of their software. This case was just one of many initiated by software makers or distributors against software pirates.

In this specific case, the plaintiff sought authorization to inspect the defendant's personal computer in order to confirm the existence of several unauthorized copies of its software. The case arrived at the National Supreme Court after a lower court refused to honor the request.

The plaintiff based their request on the International Convention for Artistic and Literary Works of Bern in 1886, which was ratified by Argentine Law-Decree 17251/67; and on the Universal Convention on Copyrights (Geneva 1952) ratified by Law-Decree 12.088/57.

Autodesk, Inc. argued that the treaties established that signatory states commit themselves to the implementation of all necessary regulations to secure sufficient and effective protection of copyrights. The Supreme Court however held that these treaties neither oblige the Argentine government to make specific laws to enforce the treaty, nor does failure to do so imply a violation of the treaties.

Furthermore, the Supreme Court mentioned Article 18 of the Argentine Constitution that requires that any criminal penalty be set by the Argentine Congress in order to be applicable. Since nowhere do Argentine copyright laws mention the word "software" (the word, of course, did not exist when they were drafted), the Court said that copying software could not be a criminal act with criminal penalties.

The decision's...

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