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11 October 2004
Decree-Law 50/2004 recently implemented the EU Directive on Copyright in the Information Society (2001/29/EC), which aims to reinforce copyright protection in view of technological developments. The directive seeks to ensure the protection of copyright and the development of new products and services under its scope of application, in a safe environment, and to facilitate the proliferation of multimedia works. It covers:
In addition, it includes several exceptions, notably the possibility to copy for private use, and foresees the fair compensation of rights holders for the use of their protected works or other subject matter.
The Portuguese legislature was also driven by the need to fight piracy - hence the concern for the actual enforcement of IP rights in view of technological developments, particularly the increasing use of the Internet. Although some protection measures were already in place prior to the directive's implementation, these were repeatedly infringed or neutralized and the perpetrators were never punished.
The new act, which amends the Portuguese Copyright Code, expressly states that the first sale or any other lawful act transferring the property within the European Union exhausts the right of distribution of the original of the work or copies thereof.
Moreover, it foresees several exceptions and limitations to copyright, such as:
These exceptions and limitations are legitimate, provided that they do not:
In certain cases right holders should receive fair compensation for the reproduction of their protected works. Portuguese law already provided for such compensation in a separate act, which stated that the price of any mechanical, chemical, electric or electronic equipment and materials used to reproduce or copy protected works would include a certain amount for the benefit of the right holders. This act has now been amended to include analogue and digital media, establishing the exact amounts to be added to the price of such equipment for the purpose of compensating rights holders. The sale of equipment which does not comply with these provisions is punishable by a maximum fine of €5,000. However, this figure is the result of converting into euros the sum already specified in the previous legislation, which has not been increased in order to enhance enforcement of IP rights.
The amendments to the Copyright Code also introduce a new chapter on technological protection measures and rights management information. Holders of copyright and related rights and databases, with the exception of computer programs, are now protected against the circumvention of technological measures and the removal or modification of rights management information, which are regarded as criminal offences.
As regards technological protection measures, these should not constitute obstacles to the normal exploitation of the rights. Rights holders should be able to control and access the work, and should take the necessary voluntary steps (ie, to enter into the necessary agreements with interested users) so that they can benefit from the legitimate use of the protected works or other subject matter.
The circumvention of technological measures and the breach of the obligations concerning rights management information may be punished by one year's imprisonment. Preparatory acts of circumvention of technological measures are also covered and are punishable by six months' imprisonment. The law also foresees accessory punishments, such as the seizure of equipment and profits obtained from the crime, and the destruction of instruments and devices exclusively aimed at the circumvention of technological measures or the unauthorized removal or modification of rights management information.
The law also clarifies that the rights holders may opt for several remedies
such as arbitration, interim injunctions and actions for damages.
For further information on this topic please contact César Bessa Monteiro at Abreu Cardigos & Associados by telephone (+351 21 7231800) or by fax (+ 351 21 7231899) or by email (firstname.lastname@example.org).
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César Bessa Monteiro