The criminalisation of “piracy” in the light of the Federal Constitution of 1988: a balancing of interests

Abstract

The present study intends to perform a constitutional analysis on the violation of intellectual property, popularly referred to as piracy (pirataria). This research, based on the Constitution's supremacy and its effectiveness, begins with the definition of piracy as a geographic concept, followed by its juridical definition. Once those definitions are established, we will identify the infra-constitutional legislation regarding this subject, focusing on its penal processing. The constitutional interests favorable to the protection of intellectual property and those against its overprotection will be determined next. Once established the penal processing of piracy, we will analyze the constitutionality of its repression by performing a balance of interests, applying the proportionality rule. We will verify, employing Robert Alexy's criteria, the suitability of the legal measures that protect intellectual property; in the second stage, the analysis advocated by the sub-rule of necessity, namely if the State, among multiple possible courses of action, opted for the one that provokes fewer rights restrictions; and ultimately, the analysis of proportionality in the narrower sense, which seeks to disclose if the measure protects more rights than it violates. Thereby, we mean to achieve a constitutional judgement regarding the State repression of piracy.