The growth of the sector in Brazil poses new technical and legal challenges to ensure the protection of intellectual property against piracy.
*By Camila Tecchio
The knowledge economy has transformed software into one of the most valuable assets in the corporate world. In Brazil, the software, services, and hardware sector generated over R$1.5 billion in 2024, representing approximately R$1.31 billion of the country's GDP—and placing the country among the ten largest technology markets in the world. This prominence, however, does not automatically translate into legal certainty or institutional maturity when it comes to intellectual property (IP) protection.
In the software industry, intellectual property is the foundation of innovation. Investments in research and development, the structuring of licensing-based business models, and continuous update cycles depend directly on ensuring that copyrights and contracts with customers are respected. Despite this, reality imposes increasingly complex technical, operational, and legal barriers.
Piracy remains one of the main threats to the sector's sustainability. It's estimated that unlicensed software is used on more than a quarter of corporate computers in Brazil. In addition to the financial losses to the industry—which loses billions annually—illegal use increases the risk of cyber incidents, vulnerabilities, and loss of sensitive data, also compromising the user's own integrity.
Another significant technical challenge is the difficulty in auditing and monitoring the effective use of licenses. It's still common to find companies that use more copies than contracted, engage in improper sublicensing, or simply ignore basic contractual usage clauses. This situation is exacerbated by the lack of internal digital asset governance mechanisms, especially among small and medium-sized businesses, which represent the majority of the consumer market.
At the same time, the increasing digitalization of processes and the increased use of technologies such as cloud computing, microservices, and API integrations have expanded the scope and complexity of licensed solutions. In many cases, the difficulty in defining what constitutes a copy, a derivative use, or a modification of the original software challenges both the contractual drafting and the application of Laws No. 9,609/98 (Software Law) and No. 9,610/98 (Copyright Law), requiring updated and technically sound interpretations.
The globalization of the sector adds even more layers to the debate. With suppliers, customers, and servers distributed across different countries, the extraterritorial application of Brazilian law becomes limited, requiring robust contractual clauses, bilateral international legal cooperation agreements, and compliance strategies adapted to multiple jurisdictions. Exchange rate fluctuations and tax changes on international remittances also impact the management of licensing agreements, especially in SaaS (Software as a Service) models.
Added to this scenario are the legal dilemmas brought on by Artificial Intelligence. The use of AI software that feeds on large volumes of data, often protected by copyright, raises discussions about legality, liability, and limitations on use. Who owns the IP of a solution derived from protected content? What are the limits on algorithm training? These questions still lack definitive answers, but they require urgent attention from legislators and the private sector.
Given this multifaceted context, protecting intellectual property in the software sector requires a coordinated effort on three fronts:
- Technical and preventive management: adoption of DRM (Digital Rights Management) tools, continuous usage monitoring, regular audits, and the implementation of licenses with technical locks to mitigate fraud and prevent misuse.
- Contractual strengthening: construction of more specific contracts, with clauses that consider technological risks, variation in use, territoriality and effective penalties.
- Institutional action and public policy: support for legislative reforms, such as regulating the use of AI and modernizing software and copyright laws, in addition to engaging with industry organizations that work to defend IP.
Protecting intellectual property means protecting innovation, investment, and the future of the software sector in Brazil. Companies, developers, and users share this responsibility. In a scenario of rapid and transnational transformations, ensuring legal certainty is an essential step to ensure that creativity continues to be the driving force of technological development—and not its victim.
*Camila Tecchio is Legal Counsel at Cyncly and leader of the Intellectual Property Committee of the Brazilian Association of Software Companies (ABES).
Notice: The opinion presented in this article is the responsibility of its author and not of ABES - Brazilian Association of Software Companies
Article originally published on the IT Forum website: https://itforum.com.br/colunas/propriedade-intelectual-software/
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