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On May 25, 2023 Portugal adopted changes to its Code on Copyright and Related Rights, fully transposing the provisions of the DSM directive. The decree-law entered into force on July 4, 2023.
Procedure:
The implementation procedure of the DSM Directive in Portugal was one of the slowest in the Union, largely passing the 3-year deadline that Member States had to transpose the Directive. The government did not, however, use this time to put in place a structured dialogue with the Portuguese civil society. Contrary to other Member States that went through lengthy legislative procedures, Portugal did not organize working groups or public events to gather input from stakeholders on the implementation.
In August 2020 the Ministry of Culture asked selected stakeholders (mostly rights holders) to send feedback on a questionnaire, with a view to conduct a public consultation in October 2020. The public consultation never took place. The Minister of Culture met with collecting societies, but meeting requests sent by civil society organizations were left unanswered.
In January 2023, the Parliament adopted a delegation law authorizing the government to implement the directive without further parliamentary deliberation. In March 2023 the government initiated a public consultation based on a draft decree-law. In May 2023, the government adopted the decree-law with a few changes (some of which based on input coming from civil society submissions to the public consultation). In June 2023, the President enacted the decree-law, followed by publication.
Article 17:
The Portuguese implementation of Article 17 mostly restates the wording of the DSM Directive. The law contains only a general requirement not to limit legitimate uses, but lacks specific ex-ante safeguards for properly balancing user rights. The law does not contain any additional transparency provisions and it does not narrow down the definition of platforms affected by these rules.
Other:
The Portuguese lawmaker maintained its existing non-remunerated education exceptions, which cover certain uses of parts of works and other subject matter done for teaching and education purposes, as permitted by Article 5(3)(a) of the InfoSoc Directive, while implementing new education exceptions covering digital uses in the context of activities run by educational establishments, as mandated by Article 5 of the DSM Directive. The new exceptions are not subject to remuneration nor to license availability, and the list of beneficiaries is slightly enlarged to cover not only students and teaching staff but also technical staff. However, the Portuguese laws fail to fully comply with Article 5 of the DSM Directive for two reasons: 1) the materials that can be used under the new exceptions are limited to those “which have previously been made available to the public in any territory belonging to the European Union or equivalent”; the education exception that applies to materials covered by the sui generis database right does not expressly cover the right of re-utilization.
Portugal made a literal implementation of Article 14, even though unoriginal reproductions were not protected by exclusive rights under Portuguese law.
The implementation of Article 15 includes almost all of the limits foreseen in the DSM Directive: scientific and academic publications are excluded from the definition of press publications; it is clarified that the right does not apply to non-commercial uses by individual users, to acts of hyperlinking nor to the use of individual words and very short excerpts of press publications; it is clarified that the right cannot be invoked against uses authorized by a non-exclusive license nor against the use of public domain works; and the right is subject to all the exceptions and limitations to copyright laid out in the national law. It is also clarified that the right does not apply to private uses by individual users. However, private uses are subject to two conditions, which are not foreseen in the DSM Directive: the individual user must have lawful access to the press publication and the use must take place in the context of the exercise of the right to be informed.
Bonus:
Nothing to see here
The implementation process of the DSM Directive in Portugal was far from exemplary. During the course of 3 years, there was no public discussion on the implementation and civil society representatives were treated less favourably by the Ministry of Culture than representatives of rights holders. After obtaining authorization from the Parliament to implement the Directive, by means of a delegation law, without further parliamentary debate, the Government slightly changed course. It organized a public consultation, based on a draft decree-law, and reflected some of the civil society input in the final version of the decree-law. Still, it did not correct all the implementation errors that had been identified in the submissions made by civil society organizations to the public consultation.
The implementation errors that can be identified on the provisions dealing with users rights mostly result from new conditions that the Portuguese lawmaker decided to add to those provisions. The new education exceptions for digital uses of protected materials are not subject to remuneration nor to license availability, however they only cover materials that have been made available to the public in the EU or equivalent territories. The press publisher’s right is subject to all of the limits foreseen in the DSM Directive, but individual users can only make private uses of press publication if they have lawful access to the press publication and only when exercising the right to be informed. Finally, the exception dealing with out-of-commerce materials only applies to materials that have been published, communicated to the public or made available to the public before 1 January 1980!
Local partners: Our local partner has been D3 - Defesa dos Direitos Digitais
For more information please see our implementation tracking page for Portugal.
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