Since the inauguration of the current President of the United States of America, Donald Trump, it has been no surprise that one of the immediate measures adopted by his administration regarding several countries has been the imposition of tariffs on imported products, without prior attempts at negotiation.
There is an ongoing debate about the legality of these executive actions, which have occurred unilaterally, without passing through the United States Congress. Some argue that the imposition of tariffs should be carried out by Congress, as the Executive Branch is allegedly making an overly broad interpretation of the International Emergency Economic Powers Act (IEEPA) of 1977, which authorizes such imposition only in cases of an “extraordinary and unusual” threat.
After imposing tariffs on various countries and following the meeting of the leaders of the BRICS countries, hosted by Brazil, the Executive Branch of the United States recently imposed a 30% tariff, which was soon increased to 50%, on Brazilian products imported by the USA. It is clear that these measures generate international trade tension in several sectors, but my goal here is to address the tension existing in a type of trade that the United States heavily exploits in Brazil: intellectual property. To give an idea, in the past year, the largest filer of patents in Brazil was the United States, accounting for 32% of all filings.
Thus, the objective of this article is not to discuss the legality of these US Executive actions, whether from a domestic regulatory perspective or international law, nor to analyse the possible political motivation of the American president, even considering that the United States has maintained a trade surplus vis-à-vis Brazil for many years in the import-export dynamics between the two countries. The focus is to address this powerful retaliation instrument legally provided in Brazil.
Law No. 15,122/2025, called the Economic Reciprocity Law, establishes criteria for suspending commercial concessions, investments, and obligations related to intellectual property rights in response to unilateral actions, policies, or practices of a country or economic bloc that negatively impact Brazil’s international competitiveness.
Following the imposition of this tariff by the US Executive on Brazil, the current Brazilian President, Lula, approved Decree No. 12,551/2025, which was published on 15 July 2025 and regulates the Economic Reciprocity Law. The decree creates a committee responsible for deciding on the application of provisional countermeasures and monitoring negotiations to overcome these unilaterally imposed measures. Its objective is to enable the Brazilian government to adopt provisional and exceptional countermeasures through a faster procedure.
It is interesting to note that the decree also expressly provides for measures related to intellectual property rights, as long as authorised by the World Trade Organization (WTO).
But what does this mean in practice? Brazil can suspend the protection of certain intellectual property rights, such as patents, copyrights, and trademarks of holders from a country or economic bloc that adopts measures considered incompatible with international agreements.
Regarding patents, as a retaliation measure, Brazil may suspend the protection of foreign patent holders and, consequently, authorise Brazilian companies to produce or import products identical or similar to those protected by such patents without paying royalties. For example, allowing Brazilian companies to produce a medicine that would be patented by a US pharmaceutical company in Brazil, without paying royalties.
Regarding copyrights, Brazil could suspend the observance of the rights in US works. This would permit copying, reproducing, or distributing such works, such as films, music, software, or books, without enforcement measures against piracy, as a form of retaliation.
The possibility of retaliation involving intellectual property rights in a commercial dispute scenario between the United States and Brazil is not new. In 2002, Brazil initiated within the World Trade Organization (WTO) a dispute against the United States for granting illegal subsidies to its cotton producers, which artificially depressed international prices and harmed Brazilian producers. In 2004, Brazil won the case, and after the US failed to comply with WTO rulings, Brazil was authorised to apply some retaliations, including the suspension of intellectual property rights. Brazil did not actually apply the retaliation but used this possibility as leverage. As a consequence, both countries managed to reach a bilateral agreement that met the interests of both parties.
Indeed, this is a legitimate and functional instrument to avoid an unchecked escalation of tariffs, such as what occurred earlier this year between the United States and China, when tariffs reached 145%.
The downside of suspending intellectual property rights is legal uncertainty, as it discourages investment in research and development because multinational companies begin to view Brazil as a high-risk environment for protecting their intellectual property assets. From a copyright perspective, Brazilian works already face strong competition from foreign works, such as major blockbuster films and international music, in a normal environment. Suspending copyrights would be to further damage this competition, encouraging rampant dissemination of international works and hindering the competitiveness of national products and the Brazilian authorship industry.
The suspension of intellectual property rights, although authorised by Brazilian legislation and international norms, involves complex and delicate consequences for the economy and diplomatic relations. Given this, now is the time for Brazil to adopt a mature stance, seeking negotiation and constructive dialogue to resolve trade conflicts, even though the real reasons for imposing tariffs on Brazil are political. Prioritising agreements and mutual understanding preserves national interests, strengthens industry, and guarantees a safer and more stable business environment for all parties involved.
