PORTUGUESE COMMUNIST PARTY

Parliamentary Group

Draft Law No 391 /X

Amends the Code of the Right of Author and the Conc Rights, transposing to

the internal legal order to Directive No 2004 /48/CE of the European Parliament

and of the Council of April 29, 2004 on respect for the rights of

intellectual property

Preamble

The XVI Constitutional Government, through the Proposal for Law No. 141/X, proposed to the

Assembly of the Republic for transposition into the Internal Law of Directive n.

2004 /48/CE of the European Parliament and of the Council of April 29, 2004 on the

respect for intellectual property rights.

This Community Directive, commonly designated by Enforcement Directive, aims to

justly fight against counterfeiting and protect intellectual property rights

harmed by these kinds of practices. Under the planned deadlines, the transposition

of this Directive should have been carried out by April 2006, so the approval of the

legislation in question if it appears urgent, not just because the Community Law

determines, but fundamentally because the rights in question lack adequate

protection in the national legal order.

The CFP has no objections in principle to the Proposition of Law No 141/X nor to the Directive

whose transposition is in question. But it has objections as to some solutions

adopted for transposition. Regarding proposed changes and additions

to the Industrial Property Code, nothing there will be fundamental to objecting. The

even does not happen however as to the amendments and additions regarding the Code

of the Right of Author and of the Conc Rights.

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As for the latter matter, of the contacts made with very entities

knowledgeable of the matter in question and who understood to pronounce upon it,

resulted in the conviction that the solutions set out in the Act Proposal are not the

more correct to ensure the assumed objective of transposition of the Directive n.

2004 /48/CE.

Thus, the Parliamentary Group of the CFP, benefiting from various contributions,

notably from GDA, AUDIOGEST and GEDIP, as well as from a

detailed report drawn up by the Order of Lawyers, understood to be in

conditions of making a contribution of its own to this debate, aiming to contribute

for that of the present legislative procedure to result in a consensual, appropriate law and

technically well-crafted.

In these terms, the Parliamentary Group of the CFP presents the following Draft Law that

Amends the Code of the Right of Author and the Conc Rights, transposing to the order

legal internal to Directive No 2004 /48/CE of the European Parliament and of the Council, of

April 29, 2004, concerning respect for intellectual property rights

Article 1.

Amendment to the Code of the Right of Author and the Rights Condices

Articles 73, 180, 185, 201, 205, 209, 209, 209 and 211 of the Code of the

Right of Author and the Rights Condices, approved by the Decree-Law No. 63/85, of 14

of March and amended by the Laws No 45/85 of September 17 and No 114/91 of 3 of

September, by the Decrees-Leis n. 332/97 and 334/97, both November 27, and

by the Laws No 50/2004 of August 24 and No 24/2006 of June 30, pass

the following:

Article 73.

[...]

1-(...)

2-(...)

3-The provisions of the preceding paragraph shall apply, with the necessary adaptations, to all

the persons and entities holding an exclusive licence for exploitation of the

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respective rights in the national territory, in relation to the uses or faculties

object of the respective authorization contract, unless stipulating otherwise.

Article 180.

[...]

1-(...)

2-(...)

3-Presume-if artist, interpreter, or executor, the one whose name has been appointed

as such in the authorized copies of the provision and in the respective casing or the one which

is advertised as such in any form of lawful use, representation or

communication to the public.

Article 185.

[...]

1-(...)

2-(...)

3-Presume-producer of the phonogram or videogram the one whose name or

name figure as such in the authorised copies and in the respective casing, in the

terms of the previous numbers.

Article 187.

[...]

1-(...)

2-(...)

3-Presume-holder of related rights on a broadcasting issue that

whose name or denomination has been indicated as such in the respective issue,

as per consecrated use.

Article 201.

[...]

1-Will always be seized of the copies or copies of the usurped works or

contrafeites, whatever the nature of the work and the form of violation, well

how the respective material casters, machines or too much instruments or

documents that there is a suspicion that they have been used or are intended to

practice of the offence.

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2-In cases of flagrante delicto, they have the competence to make the seizure the

police and administrative authorities, specifically the Judiciary Police, the Police of

Public Safety, the Maritime Police, the Republican National Guard, the Authority of

Food and Economic Security and the Inspectorate-General for Cultural Activities.

3-A sentence judging the merit of the legal action, declares lost in favour of the

State the objects in which a crime provided for in this Code is manifested as well as of

all goods that have served or were destined directly to serve the

practice of the illicit, being the copies or copies destroyed, without a right to any

compensation.

4-The judge, weighted the nature and quality of the declared goods lost in favour of the

State, and as long as the aggrieved to such does not object, it can assign them to entities

public or private, not-for-profit that use them in activities not

commercials that promote culture, teaching, scientific research and

social solidarity.

Article 205.

[...]

1-(...)

2-(...)

3-(...)

4-The publicity of the sentencing decision, being applicable, may be determined, with

the necessary adaptations to the provisions of Article 211-C.

Article 206.

[...]

The competence for the processing of the counter-ordinations is by the General Inspectorate of the

Cultural Activities and the application of the fines competes with the respective Inspector General.

Article 209.

Administrative cautionary measures

The author, the holder of neighbouring rights or their representatives, may apply for the

police and administrative authorities of the place where to check the violation of the

respective right to immediate suspension of representation, recitation, execution or

any other form of the use of work or protected provision that are

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carrying out without due authorization and, may yet cumulatively, apply for

apprehension of the totality of revenue arising from that use.

Article 211.

[...]

1-Who, with dolo or mere guilt, violates the right of author or a connexus right to hear,

is obliged to indemnify the injured for the damage resulting from the breach.

2-A The compensation referred to in the preceding paragraph shall be required by the Court by the

aggrieved or by their representatives.

3-In the determination of the amount of compensation for loss and damage of character

patrimonial, the court must address in particular the importance of the revenue obtained

by the offender as a result of the illicit activity and the outgoing profits and damages

emerging suffering from the aggrieved.

4-In the impossibility of the aggrieved to quantify the amount of the injury effectively

suffered under the terms of the preceding paragraph, and as long as this one does not object, it may the

court, in the alternative, to establish compensation for loss and damage of patrimonial

based on other elements such as, at the very least, the remunerations that would have been

injured by the injured if the offender had applied for permission to use the

right in cause or the value corresponding to the revenue that would be earned by the injured

case the offender had acquired authorized copies of the work or protected provision.

5-When the conduct of the offender is particularly doleful, it constitutes practice

reiterated or if it reveals especially gravy, can the court determine the

compensation for patrimonial damage using cumulatively to the criteria of the

n. ºs 3 and 4.

6-In case the lessee thus requires it, and regardless of the compensation to

determine in the terms of the previous figures, the court must still meet the

moral damage by him suffered and, where this is justified, to the burden borne

by the aggrieved in the creation, protection and exploitation of their rights.

7-In any case, the court must set a proportionate and reasonable amount,

intended to cover the costs and expenses in which the aggrieved incurred by virtue of the

investigation of the illicit and of the actions by it developed with a view to the cessation of

violation, to be determined on the basis of the duly proven costs, or the case

aggrieved to do so does not object, on the basis of criteria of fairness, reasonableness and

proportionality.

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Article 2.

Additions to the Code of the Right of Author and the Rights Condices

They are deferred to the Code of the Right of Author and the Rights Condices, approved by the

Decree-Law No. 63/85 of March 14 and amended by the Laws No. 45/85 of 17 of

September and paragraph 114/91 of September 3 by the Decrees-Leis n. 332/97 and 334/97,

both of November 27, and by the Laws No 50/2004 of August 24 and No 24/2006,

of June 30, Articles 209-A, 209.-B, 209.-C, 209.-D, 209.-And, 209.-F,

209 .º-G. 209.-H, 211.-A, 211.-B and 211.-C with the following wording:

Article 209-The

Competence and Tramitation of Precautionary Procedures

1-It is competent to decide any of the arrangements provided for in this Chapter o

court of the domicile, registered office or effective direction of the defendant, of the domicile or

the social headquarters of the applicant or, still, of the place where the offence is being committed or

on the spot where this is on the verge of consummating.

2-Where the hearing of the opposing party endanger the effectiveness or the purposes of

which is intended for providence or when the delay in its enactment may

irreparably impair the right of the applicant, the arrangements provided for in the

this chapter shall be enacted without hearing of the respondent.

3-Where arrangements are enacted without prior hearing of the respondent

this will be notified immediately after it is implemented, and may apply for the review

of the providence or appeal of the decision.

4-In case of injury or serious threat of serious injury and difficult repair, which

impose the urgent outlet of appropriate measures to prevent rape or

continuation of the violation, specifically in the event of a violation of rights committed

by electronic means, the court must enact, as soon as it is present to you the

application, an appropriate measure to prevent or make a cessation of that threat.

5-In cases provided for in the preceding paragraph, if you do not consider yourself entitled to proinjure

right away a decision of merit, the judge must schedule a hearing for production

of proof, within the eight days subsequent to the entry of the application in the registry

of the court, being the witnesses, at maximum number of five, all to present

by the applicant, except if the latter has required his notification.

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6-Within the time specified in the preceding paragraph, the court may still invite the

applicant to add additional proof elements.

7-The precautionary measures provided for in this diploma are to be subsidized

applicable the standards of the civil procedure code.

Article 209-B

Cautionary Measures for Defense of the Right

1-Without prejudice to the precautionary arrangements provided for in the civil procedure law and of the

precautionary measures provided for in the criminal procedure law, where the applicant

demonstrate the existence of a violation of your right or the serious risk of your right

come to be breached, can the court on the application of the person concerned, enact the

arrangements that show concretely suitable to:

a) Proinhibit the continuation of the violation;

b) Imclaim any eminent violation;

c) Suject the continuation of the activity of the respondent to the constitution of guarantees

intended to ensure an indemnity to the right holder.

2-The arrangements provided for in points (a) and (b) of the preceding paragraph may also

be enacted against intermediaries whose services are being used by

third parties in the infringement of copyright or related rights.

3-The court must, at the request of the applicant, enact a financial penalty

compulsory with a view to ensuring the application of the arrangements referred to in points (a)

and (b) of paragraph 1 and paragraph 2 of this Article.

4-The applicant shall present the evidence reasonably required and

available to demonstrate, albeit indicatively, the existence of the right, its

entitlements or legitimacy to act in representation of the respective holder well

as the verification of a violation or the eminent risk of a violation of the right in

cause.

5-In the decision on the required providence must the court meet the nature

specific to the right invoked, and in particular, to its exclusive character,

looking to always ensure that the concretely applied measures enable the

applicant the full exercise of the faculties to use and exploit economically the

his or her work or provision and to authorize or prohibit third parties such use or exploitation.

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Article 209-C

Arresto

1-Where the applicant demonstrates the existence of a violation of his or her right or

the serious risk of your right to come into being violated, can the court, the application of the

interested, order the seizure or delivery of goods that are suspected to be in violation

copyrights or related rights and the instruments that may be being

used for the practice of the illicit, in order to prevent its entry or circulation in the

commercial circuits or to ensure the preservation of the proof.

2-In the event of an infringement on the commercial scale, current or eminent, and whenever the

applicant demonstrates the existence of circumstances likely to compromise the

collection of the compensation for loss and damage, may the court, at the request of that,

order the actual seizure of movable property, real estate and other rights of the alleged

infractor, including the balances of your bank accounts, and may for the purpose of ordering

the communication or access to the data, information and banking documents,

financial or commercial pertaining to the offender.

3-The provisions of paragraph 4 of Article 209-B shall apply.

4-The arrangements set out in this article are enacted without hearing of the party

contrary, by giving them applicable the provisions of Article 209-A and, secondarily, the

general rules of procedural law that regulate the arrest.

Article 209-D

Cautionary Measures of Preservation of Proof

1-A The lessee's application and whenever this demonstrates the violation of its right

or the risk of your right to come into being violated, can the court enact the measures

necessary to preserve relevant evidence of the alleged violation.

2-Proofing measures will be able to include, among others that show

concretely suitable and effective:

a) The actual seizure of property which is suspected to be in violation of copyright or

related rights;

b) The actual seizure of the materials or instruments which are suspected to be

be or come to be used for the practice of the illicit or for the distribution of the

goods referred to in the preceding paragraph;

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c) The actual seizure of documents relating to the material goods or

instruments referred to in the previous paragraphs or which may constitute means

probats of the practice of the illicit;

d) The detailed description of the goods, materials, instruments or documents

referred to in the previous paragraphs.

3-The applicant shall submit all the evidence reasonably

available to demonstrate, albeit indicatively, according to the

circumstances of the case, the infringement or the eminent risk of a violation of the right in

cause.

4-A possible confidentiality of data and information contained in goods and

documents seized or rolled out shall not preclude the provenance of the application or the

implementation of the concretely enacted due diligence, and shall, in such a hypothesis, the court

ensuring the safeguarding of the protection of confidential information being applicable,

with the necessary adaptations, the provisions of Article 519-A of the Code of Procedure

Civil.

5-Whenever it understands convenient for good execution of the diligence enacted,

attests to the concrete circumstances and the nature of the material goods, instruments or

documents in question, the court shall designate, officiously or the application and

indication of the aggrieved, an expert who will accompany the diligence.

6-The arrangements set out in this article are enacted without hearing of the party

contrarian, provided that they show fulfilled the legal requirements.

Article 209-And

Responsibility of the applicant

1-The arrangements provided for in Articles 209-B, 209-C and 209.-D shall apply to

provisions of Article 390 of the Code of Civil Procedure.

2-In the setting of the surety referred to in Article 209 (2) of the Code of civil procedure,

the Tribunal must meet the concrete circumstances of the case, the risk of verification of

damage arising from the decrement of the providence and the economic conditions of the

applicant.

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Article 209-F

Measures for obtaining elements of Proof

1-A The application of the applicant, the court may order the submission of any

elements of proof of a current or eminent violation of the invoked right, which if

find in power of the opposing party, as well as the measures or cominations that if

show appropriate to the eventuality of default.

2-In your application, the aggrieved must present the evidence reasonably

available and sufficient to substantiate their claims, and specify the evidence

likely to support them that would predictably find themselves in power of the respondent.

3-For the purposes of the provisions of the preceding paragraph, it shall be considered reasonable proof and

sufficient, in particular, a reasonable sample of copies of an oeuvre, provision

or any other protected object.

4-Where acts that infringed copyright or related to the

commercial scale, the court may still order, in the terms set out in the numbers 1 and

2, the presentation of banking, financial or commercial documents that se

find under the control of the contrary part.

5-The provisions of Article 209 (4) shall apply to the measures enacted in the terms

of the previous number.

6-The measures provided for in this article may be required by means of the means

cautionary, thus applying the provisions of Article 209 or in the terms of the article

528. of the Code of Civil Procedure.

Article 209-G

Obligation to provide information

1-A The applicant's request the court may order the provision of information on

the origin and distribution networks of goods or services that allegedly infringe

copyrights or related rights, as well as the measures or cominations that if

appropriate show, in the eventuality of default.

2-The information referred to in the preceding paragraph, may include, in particular:

a) The names and addresses of producers, manufacturers, distributors,

suppliers and other previous possessors of the goods or services, as well as

of the wholesalers and the receiving retailers;

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b) Information on the quantities produced, fabricated, delivered, received

or ordered, as well as on the price obtained by the goods or services in

question.

3-A The provision of the information provided for in the preceding paragraph may be ordered to the

infringer or:

a) To whom it has been found in possession of goods over which it was founded

suspicion of resulting from the practice of acts violating copyright or

related, on the commercial scale;

b) To whom it has been found to use services on which it was founded

suspicion of violating copyrights or related, on the commercial scale.

c) To whom it has been found to provide, at the commercial scale, services on the

which recaia founded suspected of violating or being used for violating

copyrights or related;

d) To whom it has been indicated by the persons referred to in the above points, as

having participated in the production, manufacture or distribution of those goods or

services.

4-The provisions of the preceding paragraphs shall be without prejudice to the application of other provisions

legislative that:

a) Confirm the person concerned the right to more extensive information;

b) Regulates the use of the information obtained in proceedings of a civil nature

or penal;

c) Regulates liability for abuse of right to information;

d) Confirm the right not to render statements that may oblige any of the

persons referred to in the preceding paragraph to admit to their own participation or to

participation of close relatives in the practice of unlawful acts;

e) Confirm the right to invoke professional secrecy, the protection of confidentiality

of the sources of information or the legal regime for the protection of personal data.

5-In your application, the aggrieved must justify your application, specify the

information that you intend to obtain and present the reasonably available evidence and

sufficient of the current or eminent violation of its right.

6-It is correspondingly applicable to the provisions of Article 209 (3).-F.

7-The measures provided for in this article may be required by means of the means

cautionary, thus applying the provisions of Article 209-A, or in the terms and in the

moments of their own to apply for probation measures pending an action

judicial intended for the defense of copyrights or related rights.

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Article 209-H

Commercial scale

For the purposes of Article 209-C, paragraph 4, paragraph 4 of Article 209-F and paragraph 3

of Article 209-G, is understood by acts practiced at the commercial scale, all those

that they have for purpose a direct or indirect economic or commercial advantage,

for the one who practices them or for third parties, consequently excluding acts

practiced by end consumers, acting in good faith, as long as such acts do not attain

the normal exploitation of the work nor cause an unwarranted injury to the holder of

rights.

Article 211-The

Corrective measures

1-Without prejudice to the setting of compensation for loss and damage, the decision

judicial of merit may, at the request of the injured and at the expense of the offender, determine

measures relating to the goods in relation to which there has been a breach of

copyright or related rights, as well as in relation to the materials and instruments that

have been used predominantly for the practice of the offence.

2-The measures provided for in the preceding paragraph shall be appropriate, necessary and

commensurate with the seriousness of the violation and should cater to the interests of third parties

that they find themselves in good faith, and may include, among others:

a) the withdrawal of commercial circuits;

b) the definitive exclusion of commercial circuits; or

c) The destruction

3-It is correspondingly applicable, with the necessary adaptations, the provisions of

numbers, 3 and 4 of Article 201.

Article 211-B

Inhibitory measures

1-A sentencing court decision may still impose on the offender a measure

intended to inhibit the continuation of the practice of the infringement.

2-The measures provided for in the preceding paragraph comprise, inter alia:

a) The temporary interdiction of the exercise of certain activities or occupations;

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b) The deprivation of the right to participate in fairs or markets;

c) The temporary or final closure of the establishment.

3-The court may still, officiously or at the request of the applicant, enact, a

compulsory financial penalty with a view to ensuring the implementation of the measures provided for

in the previous number.

4-The provisions of this Article shall apply to any intermediary whose services

are being used by third parties in the infringement of copyright or rights

related.

5-The court may still, officiously or the lessee's application, convert to

definitive, amend or establish for the future any cautionary providence or

measure enacted, either on a provisional basis in the main action or in the respective apensos.

6-The provisions of this Article shall be correspondingly applicable, with the necessary

adaptations, judicial decisions of a criminal nature.

Article 211-C

Publicity of Condenatory Decisions

1-In proceedings of a criminal nature, officiously or by the application, and in the

processes of a civil nature, the requirement of the aggrieved, may the Tribunal, order,

expensing the offender, the publicitation of the final decision.

2-A advertiser provided for in the preceding paragraph may be made through disclosure in

any means of communication deemed appropriate.

3-A advertised is made by extract, of which they build the elements of the offence and the

sanctions applied, as well as the identification of offenders.

Assembly of the Republic, July 5, 2007

The Deputies

ANTÓNIO FILIPE, JOÃO OLIVEIRA, MIGUEL TIAGO, BERNARDINO SOARES, JORGE

MACHADO, LUÍSA MOSQUE, BRUNO DIAS