English
1. Introduction
The Authors’ Rights Office (Gabinete de Direito de Autor), which works under the aegis of the Ministry of Culture, put forward a proposal on modifications to authors’rights law (No. 108/IX), in order to implement the InfoSoc Directive (Dir. 2001/29/EC). After a few drafts and much debate, the law should be approved by Parliament, in view of the majority of seats held by the Government. If Parliament votes favourably, the proposal will then be considered by the President of the Republic, who will only refuse it if he deems it unconstitutional.
The proposal adds a new title (Title VI) to the Authors’ Rights Law, 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);
- penal sanctions (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).
2. Definition 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.
Article 217 of the proposal provides legal protection against the circumvention of any effective technological protection measures and defines both technological protection measures and effective technological protection measures.
According to Article 217(2) of the proposal 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.
3. Effectiveness
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 the proposal 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.
4. Restricted Acts, Sanctions and Remedies
Article 217(1) of the proposal awards copyright owners, owners of related rights and owners of the suis generis database right, legal protection against the circumvention of any effective technological measures.
Article 218 of the proposal establishes a penal sanction for the act of circumvention itself. 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 3 years
- or a fine of up to 250 days.
Attempts will be punished with a fine of up to 50 days. Criminal prosecution is not dependant on a complaint being filed by the offended party.
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 the proposal 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 1 year or a fine of up to 100 days. Criminal prosecution is not dependant on a complaint being filed by the offended party.
It is a not 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).
5. Exemptions and Exemption Procedure
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 proposal allows for exceptions as regards technological protection measures in connection to:
- photocopying for private purposes, but not of music notation [Article 75(2)(a)];
- reproduction carried out by certain entities, such as public libraries, archives, museums or academic institutions [Article 75(2)(e)];
- partial reproduction in the context of teaching [Article 75(2)(f)];
- reproduction, communication to the public and making available to the public in favour of the disabled [Article 75(2)(i)];
- public safety and administrative, parliamentary or judicial processes [Article 75(2)(n)];
- reproduction of broadcasts carried out by non-profit making institutions, such as hospitals and prisons [Article 75(2)(p)];
- 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)];
- fixation of broadcasts for archival purposes in certain cases [Article 152(4)].
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 the proposal 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, he may require that adequate measures be taken to solve the case. These measures will be taken by Comissão de Mediação e Arbitragem, whose decisions have judicial value. Every process will be deemed urgent.
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.
6. Neighboring Rights & Database Rights
In the Portuguese civil law author’s right system a different legal regime is established for author’s rights in original works on the one hand and related rights on the other. The Portuguese law protects the related rights of performers, record and film producers and broadcasters. Author’s right always prevails over related rights that are subsidiary thereto.
In line with Article 6 of the InfoSoc Directive, which also applies in the realms of the sui generis database right and neighboring rights, Article 217(1) of the proposal awards copyright owners, owners of related rights and owners of the suis generis database right, legal protection against the circumvention of any effective technological measures.
7. Technological Protection of Software
Article 6 of the InfoSoc Directive addresses the legal protection of technological measures used to protect works against copyright infringement. It cannot apply to computer programs and Article 7(1)(c) of Directive 91/250/ECC continues to apply in that context.
Article 217(1) of the proposal expressly states that the legal protection against the circumvention of any effective technological measures does not extend to the computer program field.
Article 13(2) of Decreto-Lei nº 252/94, of 20th October, which implemented the computer programs directive (Dir 91/250/CEE), foresees 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.
8. Miscellaneous & Controversial Subject
Several issues have been debated, such as the fact that the proposal seems to prevent research into cryptography, but the most controversial topics of the implementation process have been:
- 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 a penal and/or civil sanction.
The proposal was discussed in Parliament on
UPDATE October 2005
Technological Protection Measures in Portugal - Update
Following a process of public consultation – and three unsuccessful drafts - the Author’s Right Office (Gabinete de Direito de Autor), put forward a final proposal on modifications to the Author’s Right and Connected Rights Code, in order to implement the InfoSoc Directive (Law No. 50/2004), which was approved unanimously on 1st July 2004. Law No. 50/2004 has now been incorporated into the Author’s Right and Connected Rights Code.
There follows a list of amendments to the previously published overview on the basis of the changes introduced by Law No. 50/2004.
Restricted Acts, Sanctions and Remedies:
Article 218 of the Author’s Right and Connected Rights Code 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 (3 years in the previous draft) or a fine of up to 100 days (250 days in the previous draft). Attempts will be punished with a fine of up to 25 days (50 days in the previous draft). Criminal proceedings can be initiated even in the absence of a complaint.
Article 219 of the Author’s Right and Connected Rights Code 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 (1 year in the previous draft) or a fine of up to 50 days (100 days in the previous draft). Criminal prosecution is not dependant on a complaint being filed by the offended party.
Exemptions and Exemption Procedure:
The scope of Article 221, addressing limitations to the protection of technological measures was broadened, allowing for exceptions as regards technological protection measures in connection to:
- photocopying for private purposes, but not of music notation,
- reproduction carried out by certain entities, such as public libraries, archives, museums or academic institutions,
- partial reproduction in the context of teaching,
- reproduction, communication to the public and making available to the public in favour of the disabled,
- public safety and administrative, parliamentary or judicial processes,
- reproduction of broadcasts carried out by non-profit making institutions, such as hospitals and prisons,
- use of works, such as works of architecture or sculpture, made to be located permanently in public places,
- incidental inclusion of a work or other subject matter in other material,
- use in connection with the demonstration or repair of equipment,
- 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,
- private use,
- use for scientific or academic purposes,
- temporary fixation carried out by broadcasting organizations,
- fixation or reproduction by public entities for archival purposes, of phonograms, videograms and broadcasts
- 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,
- fixation of broadcasts for archival purposes in certain cases.
Patrícia Akester, PhD
Print
Send to Friend