João Miguel
Neves (joao/at/silvaneves.org)
The office responsible for proposing changes related to copyright in Portuguese law is GDA (Gabinete de Direito de Autor – Copyright Office). The GDA is part of the Ministry of Culture and its proposals are presented to the Portuguese parliament by the government. The law is then voted on in the national parliament and, if approved, sent to the Republic’s President for signing (he can only refuse the law if it is unconstitutional).
The Directive has been analysed and two revisions of it have been discussed with copyright management entities. According to the copyright law, these are entities that represent authors; some of them are entitled to the money gathered from a levy on blank media. After those discussions a draft version of the law that implements the Directive was published for public comment in 2 December 2002. The deadline for submitting comments was 10 December 2002. The copyright code resulting from the implementation of the current draft will be referred to from here on as the proposal.
The comments were taken into account in another draft that has been sent to the Culture Minister’s Office. So far there is no public knowledge of this latest version. It is not yet known if there will be further changes and if the law will go through the national parliament or will just be approved by the government under an authorisation from the national parliament. In any case the law should be approved because the government is supported by a coalition of two parties in the national parliament that has more than half of the seats.
Two factors have been the main cause of the delay of the implementation of the Directive:
· Unplanned change of government: the previous Prime Minister quit and the President chose to have new elections that resulted in a new government.
· Late start of the legislative process: the first consultations on the proposal for the implementation of the Directive started in June/July 2002.
Almost all the exceptions proposed in Article 5 of the Directive are implemented either in the proposal or were already present in the Portuguese copyright code. The following paragraphs describe if each exception is implemented, where it is in the proposal and if there are any limitations or other related information.
The exception to the right of distribution defined in the Article 5.1 of the Directive has been transposed in section 75.1 of the proposal. It has been explicitly added that network navigation (browsing) and caching are processes of distribution that fit the definitions of the exception.
For the exceptions in Article 5.2 of the Directive we have:
a) (photocopying) is implemented in section 75.2(a) of the proposal, with the rightsholders’ compensation guaranteed in section 76.1(b).
b) (private use) is implemented indirectly because the reproduction by a natural person for private use is not covered by the copyright law (See section 62 of the proposal). The rightsholders’ compensation is established in section 82.2.
c) (libraries, museums and archives) is implemented in section 75.2(e) of the proposal.
d) (ephemeral broadcasting purposes) is not implemented in the proposal.
e) (social institutions) is implemented in section 75.2(p) of the proposal, with the rightsholders’ compensation guaranteed in section 76.1(d).
For the exceptions in Article 5.3 of the Directive we have:
a) (teaching and research) is implemented in section 75.2(f) and h) of the proposal.
b) (disability) is implemented in section 75.2(i) of the proposal.
c) (news reporting) is implemented in section 75.2(m) of the proposal.
d) (criticism and review) is implemented in section 75.2(g) of the proposal.
e) (public security) is implemented in section 75.2(n) of the proposal.
f) (political speeches and public lectures) is implemented in section 75.2(b) of the proposal.
g) (religious or official celebrations) is implemented in section 75.2(j) of the proposal. In the case of religious celebrations only works of a religious nature are covered by the exception. For official celebrations only officially accepted songs and hymns like the national anthem are covered.
h) (public places) is not implemented in the proposal.
i) (incidental) is not implemented in the proposal.
j) (advertising exhibition or sale) is implemented in section 75.2(l) of the proposal.
k) (caricature, parody and pastiche) is not implemented in the proposal.
l) (equipment demonstration or repair) is not implemented in the proposal.
m) (architectural) is not implemented in the proposal.
n) (library, museum and archive public-access terminals) is implemented in section 75.2(o) of the proposal.
o) allows the existence of all the other exceptions present in section 75 of the proposal.
There are no limitations defined to the bans on circumvention or circumvention devices. The proposal creates a section 221 in the copyright code that defines that copyright owners should adopt voluntary measures in order to allow the exercise of the exceptions defined in the Article 5 of the Directive. In cases where technological protection measures restrict fair uses and negotiation is not possible or the copyright owner doesn’t provide a way to exercise fair use, a person or organisation can request the adoption of the necessary measures.
It is expected that such exceptions will be created for particular cases through the appeal process to “Comissão de Mediação e Arbitragem” (the equivalent to a small claims court whose decisions have judicial value) that was created by law 83/2001, of 3 August 2001 when rightsholders refuse to provide access for lawful uses.
Every such process will be treated as urgent. The copyright owner may limit, through TPM, the number of reproductions allowed for private use.
There is nothing to deal with interoperability or research regarding technological protection measures.
The limitations on freedom of speech in the Directive result from the ban on communications related to technological protection measures (Article 6.2 of the Directive) and as an indirect effect of the “take-down” clause (Article 8.3 of the Directive). Freedom of speech is not considered in limiting the disclosure of technical protection measures.
As for the “take-down” clause it should be considered a non-issue in the proposal because it is implemented through court injunctions (section 227 of the proposal), meaning that any action taken against intermediaries has to be evaluated by a judge. It is hoped that this will avoid the abuse of this clause that has been observed in other countries.
For privacy issues, section 228 of the proposal states that the copyright code cannot override the protection provided by personal information and privacy protection legislation in Portugal.
In the proposal no changes are made to the penalties for copyright infringement. These are up to 3 years in jail or a fine of between 150 and 250 days. In case of a repeated offence these limits are doubled and, in that case, there is no possibility of a suspended sentence. Neglect is punishable with a fine of 50 to 150 days.
In order to comply with Article 6.2 of the Directive, the proposal defines the crime of “Tutela penal” in section 224 which is punishable with up to three years in jail or a fine of up to 250 days. An attempt is punishable with a fine of up to 50 days. In section 225 it is defined that all material used for the crime may be seized, disabled or even destroyed. Any civil liability is independent of any criminal prosecution.
The crime of “Tutela penal” does not require any intent. The acts defined in sections 218 (circumvention) and 219 (Article 6.2 of the Directive) are criminal. It is expected that, in court, some kind of criminal intent must be present for a conviction.
The organisations contacted by the GDA for the non-public debate were:
·
GDA -
Coop. De Gestão dos Artistas Intérpretes ou Executantes (Management Cooperative
of Interpreters)
·
SPA -
Sociedade Portuguesa de Autores (Portuguese Authors Society)
·
AFP -
Associação Fonográfica Portuguesa (Portuguese Recording Association)
·
APE -
Associação Portuguesa de Escritores (Portuguese Writers Association)
·
APEL
- Associação Portuguesa de Editores e Livreiros (Portuguese Publishers and
Booksellers Association)
·
DAP -
Coop. De Gestão dos Artistas em Portugal (Management Cooperative of Portuguese
Artists)
·
GEDIPE
- Associação para a Gestão dos Direitos dos Autores, Produtores e Editores
(Association for the Management of Rights of Authors, Producers and Publishers)
·
GESTAUTOR
- Associação para a Gestão dos Direitos Reprográficos (Association for the
Management of Reprographic Rights)
·
UEP -
União de Editores Portugueses (Union of Portuguese Editors)
·
Assoft
- Associação Portuguesa de Software de Informática (Portuguese Information
Software Association)
·
APAD
- Associação Portuguesa de Argumentistas e Dramaturgos (Portuguese Association
of Script and Play Writers)
· AGECOP - Associação para a Gestão da Cópia Privada (Association for the Management of the Private Copy)
·
AFI -
Associação Fonográfica Independente (Independent Recording Association)
The Copyright Office contacted these associations in July with a draft of a law that implements the Directive. As far as we know there were two positions on this proposal: one from AGECOP and one from AFP, AFI, APEL, GDA and SPA (it should be noted that AFP, AFI, APEL, GDA and SPA are associates of AGECOP).
AGECOP’s main concerns were with the changes of section 82 (that defines the compensation for reproduction or recording of copyrighted works). This is also the section which implements the “fair compensation” defined in Article 5.2(b) of the Directive. The issues raised by AGECOP were not related to the Directive’s implementation.
The position of AFP, AFI, APEL, GDA and SPA criticises the choice of the legislators to include more exceptions than the ones already present in national law because, they claim, the reason so many exceptions exist in the Directive is not because they should be implemented in all countries, but because the European Commission tried to include most of the exceptions already present in each country. So, they argue, those exceptions should really be ignored if they are not already present in national legislation.
Other than trying to reduce the number of exceptions, they also argued that the majority of the exceptions should have some kind of compensation for the rightsholders.
The rest of their position includes some corrections to the form of the proposal.
After evaluating these positions, the Copyright Office brought forward a new proposal that was made public in December 2, 2002. This proposal was subject to public comment with a deadline of December 10, 2002.
SPA commented on the proposal focusing, once again, on the exceptions defined in Article 5 of the Directive. They have proposed some limitations to the exception present in section 75.2(a) and that the exception (l) in the same paragraph (that deals with advertising) should either be removed or, at least, its use should result in compensation for the rightsholders. They also proposed some minor corrections to the draft.
ANSOL - Associação Nacional para o Software Livre (National Association For Free Software) – has stated its position. Its major issue with the proposal is that the protection provided by Article 6 in the Directive is so broad that, if Free Software is used to implement technological protection measures (TPM), it could mean that the source code that is implicitly available for all Free Software contains information that might be considered as facilitating the circumvention of a TPM. In such a case or in the event that someone promotes or advertises such a use, the distribution of the source code becomes illegal and the software that implements the TPM will no longer be Free Software, as it would not provide its user with the ability to study, adapt or modify it.
ANSOL has also proposed a new paragraph for section 221 that would result in the loss of the protection given by Article 6 of the Directive if rightsholders refuse to provide the means to exercise some lawful use of the work protected by a TPM.
ANSOL has also presented its position against the media tax as a way to compensate rightsholders because it is hampering the ability to distribute Free Software and, with the extensions proposed, part of the money resulting from that tax might even go to those who consider Free Software a competitive threat.
So, most of the public debate on the proposal has been focused on the compensation defined in Article 5.2(b) of the Directive, the proposed exceptions in Article 5 and the protection of technological protection measures of Article 6. At the moment it is not possible to identify if those debates had any effect as the current law draft is not public.