Portugal
Implementation of the Information Society Directive in Portugal (Patricia Akester, University of Cambridge)
Contents
Introduction
In Portugal the first consultations on the proposal for the implementation of the Directive only started in the Summer of 2002. Following a process of public consultation – and three unsuccessful drafts - the Author’s Right Office (Gabinete de Direito de Autor), which works under the aegis of the Ministry of Culture, put forward a final proposal on modifications to the Author’s Right and Connected Rights Code, in order to implement the InfoSoc Directive, which received Cabinet approval on 7th January 2004 (Law No. 50/2004).
Granted Rights
According to the Directive, authors, performers, phonogram producers, film producers and broadcasters are provided with the same level of protection for their right of reproduction (Directive 2001/29/EC, Article 2). Authors are given the right of communication to the public, including the Internet right provided for by Article 8 of the WIPO Copyright Treaty, and the distribution right [Directive 2001/29/EC, Articles 3(1) and 4(1)]. Performers and phonogram producers are also granted the Internet right provided for by Articles 10 and 14 of the WIPO Performances and Phonograms Treaty [Directive 2001/29/EC, Article 3(2)]. The Directive goes beyond the WIPO Performances and Phonograms Treaty by extending the right to film producers and broadcasting organisations.
Article 2 of the InfoSoc Directive addresses the reproduction right, protecting all kinds of reproduction that may occur over the Internet, whether tangible or intangible, in material or immaterial form, off-line or on-line and, in whole or in part. This provision is implemented by Articles 68(2)(i), 176(7), 178(c), 184(1) and 187(1)(c) of Law No. 50/2004 – covering the reproduction right of authors, performers, phonogram and videogram producers, and broadcasting organisations.
Article 3 of the InfoSoc Directive is intended to cover dissemination of works and related subject matter on the Internet (Directive 2001/29/EC, Article 3). It goes beyond the WIPO Performances and Phonograms Treaty as it covers not only audio but also audio-visual material. This is relevant since not only audio but also audio-visual material can be obtained on-demand over the Internet. This provision is implemented by Articles 68(2)(j), 178(a) and (d), 184(2) and 187(1)(d) of Law No. 50/2004 – covering the right of communication to the public, including the Internet right, of authors, performers phonogram and videogram producers, and broadcasting organisations.
Since all authors were already granted a distribution right by Article 68(2)(f) of the Authors’ Right and Connected Rights Law, the only aspect of Article 4 of the InfoSoc Directive which has to be implemented into national law is that relating to community wide exhaustion (Art. 68(5) of Law No. 50/2004).
Exceptions
Member States are allowed to provide for exceptions and limitations subject to the three step test [see Article 5(5) of Directive 2000/31/EC and Article 9(2) of the Berne Convention]. Article 5, unlike Articles 10 of the WIPO Copyright Treaty and 16 of the WIPO Performances and Phonograms Treaty, does not establish a general rule, but an exhaustive list of exceptions and limitations. Although this could be said to avoid the introduction of too wide exceptions and limitations in the digital area, it could also be argued that a general clause would more easily adapt to the fast pace of change of digital technology.
Article 5(1) Exceptions
Certain technical acts of reproduction are exempted from the scope of the reproduction right where they have no separate economic significance [Directive 2001/29/EC, Article 5(1)]. The Directive goes beyond the WIPO Treaties’ duties in providing service and access providers with an exemption regarding incidental acts of reproduction.
This exception – the only compulsory one - is implemented by Article Art. 75(1) of Law No. 50/2004. The Portuguese Act goes beyond the InfoSoc Directive, when it includes in the scope of this exception “acts which enable network navigation and temporary storage of information, as well as acts which enable the efficient working of transmission systems, provided intermediaries do not change the contents of transmitted information and do not interfere with legitimate usage of technology judged according to good market practice, to obtain data regarding the use of information and, in general, technological processes of transmitting information.” This provision establishes limitations on the liability of service providers in line with the Electronic Commerce Directive (Directive 2000/31/EC). It is unclear whether the wording only covers the mere conduit exception, or whether it is supposed to cover caching and hosting too.
Article 5(2) Exceptions
Member States are allowed to establish certain restrictions to the reproduction right (reprography, reproduction for private use and non-commercial ends, reproduction carried out in establishments accessible to the public for non-commercial and non-economic purposes).
Article 5(2)(a) of the InfoSoc Directive is implemented by Article 75(2)(a) of Law No. 50/2004. According to Article 75(2)(a), reproduction of a work, for private purposes, on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, is allowed, without the authorization of the author. The authors’ and publishers’ fair compensation is guaranteed by Article 76(1)(b).
Reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial (Article 5(2)(b) of the InfoSoc Directive), are not covered by Law No. 50/2004. However, Article 81 of the Author’s Right and Connected Rights Code already authorises the reproduction of works, exclusively for private purposes, provided they do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. The works thus reproduced may not be communicated to the public or used for commercial purposes. The rightsholders’ compensation is established in Article 82(2) of Law No. 50/2004, in which the calculation of a fair compensation takes into account the application or non-application of technological protection measures to the work or subject matter concerned.
The principle enshrined in the Portuguese Code is that the right to privacy, which is set out in the Constitution, impedes control of private use of works and related subject matter. The subsistence of digital private copyright is balanced by extending the existing levy scheme to digital carriers (3% before VAT).
The exception in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage (Article 5(2)(c) of the InfoSoc Directive) is implemented by Article 75(2)(e) of Law No. 50/2004. The authors’ and publishers’ fair compensation is guaranteed by Article 76(1)(b).
Article 5(2)(d) of the InfoSoc Directive, aiming at the preservation of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts in official archives, is not covered by this Act.
Article 75(2)(p) of Law No. 50/2004 implements Article 5(2)(e) of the InfoSoc Directive, by establishing an exception in respect of reproductions of broadcasts made by social institutions pursuing non commercial purposes, such as hospitals or prisons. Rightholders’ compensation is guaranteed by Article 76(1)(d) of Law No. 50/2004. According to the Author’s Right Office even though this is a new exception, in practice it merely translates into law an established practice (Gabinete do Direito de Autor, Nota justificativa, 10).
Article 5(3) Exceptions
Restrictions to the reproduction, communication to the public, including the on-demand availability rights, may be established for traditionally accepted purposes, such as illustration for teaching or scientific research, use of excerpts in connection with the reporting of current events and quotations for criticism or review [Directive 2001/29/EC, Article 5(3)].
The exception relating to use for the sole purpose of illustration for teaching or scientific research (Article 5(3)(a) of the InfoSoc Directive), is implemented by Article 75(2)(f) and (h) of Law No. 50/2004. There is not requirement that the source, including the author's name, be indicated when possible.
Article 75(2)(i) of Law No. 50/2004 authorizes use for the benefit of people with a disability, which is directly related to the disability and of a non commercial nature, to the extent required by the specific disability, thus implementing Article 5(3)(b) of the InfoSoc Directive.
Article 75(2)(m) of Law No. 50/2004 implements Article 5(3)(c) of the InfoSoc Directive, as it enables the reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject matter of the same character, in cases where such use is not expressly reserved. There is no requirement that the source, including the author's name, be indicated.
Article 75(2)(g) of Law No. 50/2004 authorises quotations to support ones’ own ideas or for purposes of criticism, discussion or teaching, to the extent required by the specific purpose, implementing Article 5(3)(d) of the InfoSoc Directive. There is no requirement that the source, including the author's name, be indicated.
The exception relating to use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings (Article 5(3)(e) of the InfoSoc Directive) is implemented by Article 75(2)(n) of Law No. 50/2004. This exception already subsisted as regards databases [Decree-Law n. 122/2000, Article 10(1)(c)] and is now extended to other works and related subject matter.
According to Article 75(2)(b) of Law No. 50/2004 speeches, public lectures or similar works or subject matter may be reproduced and made available to the public by the media (Article 5(3)(f) of the InfoSoc Directive). There is no requirement that the source, including the author's name, be indicated when possible.
Article 5(3)(g) of the InfoSoc Directive is implemented by Article 75(2)(j) of Law No. 50/2004, which allows the use of religious hymns or national anthems during religious celebrations or official celebrations.
The exception relating to use of works, such as works of architecture or sculpture, made to be located permanently in public places (Article 5(3)(h) of the InfoSoc Directive), is covered by Article 75 (2)(q) of Law No. 50/2004, and incidental inclusion of a work or other subject matter in other material (Article 5(3)(i) of the InfoSoc Directive) is allowed by Article 75 (2)(r) of the same law.
Article 75(2)(l) of Law No. 50/2004 implements Article 5(3)(j) of the InfoSoc Directive, when it authorizes use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use. This is a new addition to the Portuguese Author’s Right Code. One said to benefit the author above all (Gabinete do Direito de Autor, Nota justificativa, 10).
Law No. 50/2004 does not contain the exception inspired by French Law relating to use for the purpose of caricature, parody or pastiche (Article 5(3)(k) of the InfoSoc Directive). In this respect the Portuguese Author’s Right Code follows the German model. Parody is the subject of protection even when inspired in another work (Article 2(1)(n) Authors’ Right and Connected Right Code).
Article 75(2)(s) of Law No. 50/2004 embraces the exception relating to use in connection with the demonstration or repair of equipment (Article 5(3)(l) of the InfoSoc Directive), and Article 75(2)(t) of the same law enables the use of an artistic work in the form of a building or a drawing or plan of a building for the purposes of reconstructing the building (Article 5(3)(m) of the InfoSoc Directive).
Article 5(3)(n) of the InfoSoc Directive is implemented by Article 75(2)(o) of Law No. 50/2004, which authorizes use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of libraries, museums, archives and educational establishments of works and other subject matter not subject to purchase or licensing terms which are contained in their collections. In its memorandum -Gabinete do Direito de Autor, Nota justificativa, 9- the Author’s Right Office states that this is not a new exception, but simply applies an old practice to a new medium.
Law No. 50/2004 does not implement Article 5(3)(o) of the InfoSoc Directive, which authorises use in certain other cases of minor importance already in force under national law.
In line with Article 5(5) of the InfoSoc Directive, Article 75(4) of Law No. 50/2004, states that these exceptions and limitations may not conflict with a normal exploitation of the work or other subject matter and may not unreasonably prejudice the legitimate interests of the rightholder. But there is no mention of “certain special cases”.
Filesharing
Article 81 of the Author's Right and Connected Rights Code authorises the reproduction of works, in any means, exclusively for private purposes, provided they do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. The rightsholders' compensation is established in Article 82(2) of Law No. 50/2004. The principle enshrined in the Portuguese Code and accepted by the Copyright Office is that the right to privacy, which is set out in the Constitution, impedes control of private use of works and related subject matter. The subsistence of digital private copyright is balanced by extending the existing levy scheme to digital carriers (3% before VAT).
The act of uploading and thus communicate to the publication, is not covered by an exception.
Nullity of some contractual provisions
According to the Author’s Right Office the principle of freedom of contract, which is of great importance in the realms of intellectual property, presupposes the equality of the parties. Often the unequal bargaining power of the parties will mean that one of them will be able to determine the terms of a contract. To avoid unilateral decisions as regards exceptions and limitations, Article 75(5) of Law No. 50/2004 deems null any contractual provision eliminating or impeding the normal exercise of the free uses mentioned above (Gabinete do Direito de Autor, Nota justificativa, 14).
Technological protection measures
Member States have to adopt remedies against devices designated to overcome technical protection measures (Directive 2001/29/EC, Article 6).
Law No. 50/2004 adds a new title (Title VI) to the Authors’ Right and Connected Rights Code, entitled “Protection of technological measures and of rights management information”, which implements article 6 of the InfoSoc Directive:
The new title includes the following provisions: • protection of technological measures (Article 217); • criminal penalties (Article 218); • preparatory acts (Article 219); • extension of the scope of voluntary agreements (Article 220); • limitations to the protection of technological measures (Article 221); and • an exception (Article 222).
Protection of Technological Measures
Article 6(1) of the InfoSoc Directive requires Member States to protect against the deliberate circumvention without authority of effective technological measures. The provision goes beyond the WIPO Treaties. Its scope of protection covers any activities designated to overcome technical protection measures, including preparatory activities that facilitate or enable the circumvention of such devices. It requires knowledge by the person liable for the circumvention, which implies that only activities and services whose purpose is to circumvent technological protection devices are covered by this provision. The provision covers not only infringement of author’s rights and related rights, but also that of the sui generis right of database makers. It cannot apply to computer programs and Article 7(1)(c) of Directive 91/250/ECC continues to apply in that context.
In line with this provision, Article 217 of Law No. 50/2004 awards copyright owners, owners of related rights and owners of the suis generis database right legal protection against the circumvention of any effective technological protection measures and defines both technological protection measures and effective technological protection measures - Article 217(1) of Law No. 50/2004 expressly states that the legal protection against the circumvention of any effective technological measures does not extend to computer programs. Article 13(2) of Decree-Law n. 252/94, of 20th October, which implemented the computer programs directive (Dir 91/250/CEE), authorises the apprehension of devices made available in the course of trade, which sole purpose is to facilitate the non-authorised circumvention of any technical measure of protection of a computer program. This provision does not deal with the act of circumvention itself.
According to Article 217(2) of Law No. 50/2004 technological measures are any technology, device or component which in the normal course of its operation, is designed to prevent or restrict non authorised acts in relation to works and other protected subject matter, other than a computer program. There is no reference to the fact that use of a work does not extend beyond the scope of the acts restricted by copyright.
Article 6(3) of the InfoSoc Directive includes a definition of effective technological measures, clarifying that they are not limited to copy protection. In line with the wording of the InfoSoc Directive, Article 217(3) of Law No. 50/2004 states that such measures are effective when the use of the work or other protected subject matter is controlled by the copyright owner through an access control or protection process such as encryption, scrambling or other transformation of the work or other subject matter, or a copy control mechanism, which achieves the intended protection.
Liability Arising from Circumvention
Article 218 of Law No. 50/2004 provides that the act of circumvention itself will trigger criminal liability. The circumvention of any effective technological measures which is carried out in the knowledge, or with reasonable grounds to believe, that that objective is being pursued, may lead to imprisonment for a term of up to 1 year or a fine of up to 100 days. Attempts will be punished with a fine of up to 25 days. Criminal proceedings can be initiated even in the absence of a complaint.
Article 6(2) of the InfoSoc Directive is complementary to Article 6(1), requiring Member States to protect against the manufacture of, or dealing in, illegal circumvention devices and services.
Article 219 of Law No. 50/2004 creates a new offence in the context of dealing in devices and services which circumvent effective technological measures. This provision deals with preparatory activities, stating that a person commits an offence if he manufactures, imports, distributes, sells, rents, advertises for sale or rental, or possesses for commercial purposes devices, products or components or provides services which are promoted, advertised or marketed for the purpose of circumvention of effective technological measures, or have a limited commercially significant purpose or use other than to circumvent, or are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures.
This offence may lead to imprisonment for a term of up to 6 months or a fine of up to 50 days. Criminal prosecution is not dependant on a complaint being filed by the offended party.
It is not a defence for the defendant to prove that he did not know, and had no reasonable ground for believing, that the device, product or component or the service, enabled or facilitated the circumvention of effective technological measures.
Civil liability may also emerge from the violation of technological protection measures (Article 226).
Limitations to the Protection of Technological Measures
Article 6(4) of the InfoSoc Directive addresses the interaction between the legal protection of technological measures for protection of copyright and the need for users to be able to take advantage of certain exceptions.
The Portuguese Act allows for exceptions as regards technological protection measures in connection to: photocopying for private purposes, but not of music notation [Article 75(2)(a) of Law No. 50/2004], reproduction carried out by certain entities, such as public libraries, archives, museums or academic institutions [Article 75(2)(e) of Law No. 50/2004], partial reproduction in the context of teaching [Article 75(2)(f) of Law No. 50/2004], reproduction, communication to the public and making available to the public in favour of the disabled [Article 75(2)(i) of Law No. 50/2004], public safety and administrative, parliamentary or judicial processes [Article 75(2)(n) of Law No. 50/2004], reproduction of broadcasts carried out by non-profit making institutions, such as hospitals and prisons [Article 75(2)(p) of Law No. 50/2004], use of works, such as works of architecture or sculpture, made to be located permanently in public places [Article 75(2)(q) of Law No. 50/2004], incidental inclusion of a work or other subject matter in other material [Article 75(2)(r) of Law No. 50/2004], use in connection with the demonstration or repair of equipment [Article 75(2)(s) of Law No. 50/2004], use of an artistic work in the form of a building or a drawing or plan of a building for the purposes of reconstructing the building [Article 75(2)(t) of Law No. 50/2004], private use, use for scientific or academic purposes, temporary fixation carried out by broadcasting organizations, and fixation or reproduction by public entities for archival purposes, of phonograms, videograms and broadcasts [Article 189(1)(a), (c), (d) and (e) of the Authors’ Right and Connected Rights Law], private copying, provided it does not conflict with the normal exploitation of the author’s work nor unreasonably hinders the legitimate interests of the author, and the copies are not communicated to the public nor commercialised [Article 81(b) of the Authors’ Right and Connected Rights Law], fixation of broadcasts for archival purposes in certain cases [Article 152(4) of the Authors’ Right and Connected Rights Law].
To ensure balance in this matter, a new provision (Article 221) is to cover cases where, because of the application of an effective technological measure, a user is unable to carry out those permitted acts.
Article 221 of Law No. 50/2004 states that effective technological measures may not constitute an obstacle to fair use. It further states that rightholders should take voluntary measures, such as agreements between rightholders or their representatives and users.
In the absence of voluntary measures taken by rightholders, where the application of any effective technological measure prevents a person from carrying out a permitted act and that person has legal access to the protected work or subject matter concerned, they may require that adequate measures be taken to solve the case. These measures will be taken by Comissão de Mediação e Arbitragem, whose decisions can be taken to the Court of Appeals.
This scheme does not apply to copyright works made available to the public on agreed contractual terms, in such a way that members of the public may access them from a place and at a time individually chosen by them (Article 222).
Notwithstanding the above, rightholders may limit by means of technological protection measures the number of reproductions which are allowed for private use.
Rights Management Information
Member States have to adopt remedies against devices designated to interfere with rights management information (Directive 2001/29/EC, Article 7). Article 7 of the InfoSoc Directive is not as detailed as its counterparts in the WIPO Treaties, but its protection is extended to the sui generis right of database makers.
Articles 223 and 224 of Law No. 50/2004 implement Article 7 of the InfoSoc Directive.
Article 223 provides legal protection for rights management information and defines RMI as any information provided by rightholders which identifies the work or other subject-matter, information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information.
Article 224 states that the removal or alteration of any electronic rights management information, the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject matter from which electronic rights management information has been removed or altered without authority, if the person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of any copyright, when these acts are performed without authority, with knowledge, or with reasonable grounds to know, and intentionally, may lead to imprisonment for up to 1 year or a 100 day fine. Attempts will be punished with a fine of up to 25 days. Criminal prosecution can be initiated even if a complaint is not filed.
Enforcement
Member States must ensure the availability of enforcement procedures (Directive 2001/29/EC, Article 8).
According to Article 225 of Law No. 50/2004, all instruments used to commit crimes may be seized, disabled or even destroyed. Civil liability emerging from these acts is independent of any criminal prosecution (Article 226 of Law No. 50/2004). Article 227 of Law No. 50/2004 states that rightsholders may obtain, in certain circumstances, injunctions against Internet intermediaries, also allowing for the notice and take down procedure to take place.
Conclusion
Writing such an ambitious and controversial Directive into national law has proved to be a difficult task. In Portugal, several issues were the subject of discussion, such as the fact that the initial proposals seemed to prevent research into cryptography, but the most contentious topics of the implementation process were the list of exceptions (Article 5 of the InfoSoc Directive), compensation for acts of reproduction (Article 5(2)(b) of the InfoSoc Directive) and the protection of technological protection measures (Article 6 of the InfoSoc Directive), especially whether the circumvention of those measures should lead to both civil redress and criminal penalties.
In Portugal, the proposal to implement the InfoSoc Directive was discussed in Parliament on the 25th February 2004 and approved unanimously on 1st July 2004. This was expected in view of the majority of seats held by Government.
