Pesquisa, desenvolvimento e inovação em tecnologias da informação e comunicação: Lei de Informática e incentivos fiscais à luz das novas teorias regulatórias

Abstract

The thesis makes an analysis of Brazilian Information and Communication Technology (ICT) sector development over the last two and a half decades in the aspects of the institutional elements and legal instruments designed to support Research, Development and Innovation (RD&I) especially by means of tax incentives. The idea is to evaluate whether, in the context of reflexive modernization, the sector’s policy-regulatory process is embracing the assumptions and premises of the new regulatory theories, such as valuing a negotiation-based approach to regulation, with greater openness of the public sector to dialogue with the regulated sector in an endeavor to address the public interest and in the interest of fostering regulatory simplicity and efficiency. The empirical framework of the stimulus to RD&I in the ICT sector is the object of a specific investigation within the broader field of the discussion of the determinants of investment in innovation. The study investigates the results stemming from the establishment of the incentives contemplated by the Informatics Law and the historical difficulties encountered to administer it. The reference for the analysis of that panorama consists of relevant academic studies, analyses of industry and audits conducted by the Court of Accounts in addition to the position of the Ministry of Science, Technology, Innovations and Communications - MSTIC itself. In another direction the performance of the Superintendence of the Manaus Free Trade Zone - Suframa is analyzed in addition to the brief experience of the National Telecommunications Agency - Anatel in this field. The thesis compares the trajectory of that regulation with the best practices recommended by the new regulatory theories, proposing greater interaction and participation of the regulated sectors and other stakeholders in the regulatory networks, in addition to the use of ix alternative conflict resolution and stalemate-solving mechanisms that go beyond the traditional sanctions-only performance of traditional regulation. It is considered to be imperative to equate the legacy of the Informatics Law in regard to backlog of pending analysis processes in MSTIC and in Suframa, as well as the accumulation of the incentive amounts disallowed due to the companies’ non-fulfillment of R&D obligations along the years. The thesis concludes that, historically, good regulatory practices have not been implemented by the Brazilian regulatory entities and there has not even been a critical reflection on that aspect. Among the options to address those challenges in the light of future legislation and even the very survival of the IT Policy, some suggestions are made of alternative pathways referenced by the new regulatory theories. Among them are the adoption of more dynamic and more efficient regulatory practices, the creation or reinforcement of multi-lateral spheres of public-private and academic debate, the development of a consensual agenda for the sector and the proposal of agreements that would enable the shared re-investment of the withheld amounts in universities, public and private institutes and private investment funds designed to support R&D and innovation such as startups, venture funds, angel investors, etc., and in strategic cooperative projects. Instruments for the consensual solution of regulatory conflicts that are typical of responsive regulation such as regulatory networks and the application of the regulatory pyramid are recommended as opposed to unilateral, autocratic regulation through the application of sanctions that typifies the regulatory State. They are considered to be the best alternative for overcoming invisibility and embodying the public interest principle in the Brazilian ICT sector debate on regulation.