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PORTUGUESE COMMUNIST PARTY Parliamentary Group draft law No. 391/X Changes the code of copyright and related rights, transposing to the internal legal order the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 relating to the respect for intellectual property rights Preamble the XVI constitutional Government, through the Proposal of law No. 141/X , has proposed to Parliament the transposition into national law of Directive 2004/No. 48/EC of the European Parliament and of the Council of 29 April 2004 relating to the respect for intellectual property rights.
This European directive, commonly referred to as "Enforcement" Directive, visa just combat counterfeiting and protect intellectual property rights affected by this kind of practice. According to the timetable, the transposition of this directive should have been made until April 2006, the passage of the legislation concerned is urgent, not only because Community law determines, but mainly because the rights concerned lack adequate protection in the national legal order.
The CFP has no objection in principle to the proposal of law No. 141/X or Directive whose transposal is concerned. But have objections about some solutions adopted for the transposition. Amendments and proposed amendments to the Industrial Property Code, there is nothing of fundamental objection. The same is not true however as to changes and additions related to the code of copyright and related rights.
2 on this last issue, contacts made with very knowledgeable of matter entities concerned and who understood comment on her, resulting in the conviction that the solutions contained in the draft law are not the most correct to ensure the default purpose of the transposition of Directive No. 2004/48/EC.
Thus, the Parliamentary Group of the PCP, benefiting from various contributions, namely the GDA, of AUDIOGEST and of the GEDIP, as well as a detailed report prepared by the Bar Association, understood to be in a position to present an own contribution to this debate, in order to contribute to the present legislative process resulting in a consensual act, appropriate and technically well prepared.
In these terms, the Parliamentary Group of the PCP presents the following draft Act amending the code of copyright and related rights, transposing to the internal legal order the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 relating to the respect for intellectual property rights article 1 Amendment to the code of copyright and related rights articles 73 , 180, 185, 187 §, 201, 205, 206, 209 and 211 of the code of copyright and related rights, approved by Decree-Law No. 63/85, of March 14 and amended by laws No. 45/85 of September 17 and no. 114/91 of September 3, by Decree-Law No. 332/97 and 334/97, both of 27 November , and by law No. 50/2004, 24 August and no. 24/2006, of June 30, are replaced by the following: article 73 [...] 1-(...) 2-(.) 3-the provisions of the preceding paragraph shall apply, mutatis mutandis, to all persons and entities who hold an exclusive license for exploitation of 3 respective rights in the national territory, in relation to the use or purpose of the respective colleges authorization agreement unless stipulation to the contrary.
Article 180 [...] 1-(...) 2-(...) 3 – presumably, artist, performer, one whose name has been indicated as such in the authorized copies of the provision and its wrapper or one that is advertised as such in any form of lawful use, representation or communication to the public.
Article 185 [...] 1-(...) 2-(.) 3-presumably, producer of the phonogram or videogram that whose name or title appearing as such in the authorized copies and in its wrapper, pursuant to the preceding paragraphs.
Article 187 § [...] 1-(...) 2-(.) 3-presumed holder of related rights on a broadcasting one whose name or title has been indicated as such in the relevant issue, as consecrated.
Article 201 [...] 1-will always be seized copies or counterfeit copies of works or hijacked, whatever the nature of the work and the form of rape, as well as the respective casings materials, machines or other instruments or documents that is suspected of being used or intended to commit the offence.
4 2 – in cases of flagrante delicto, have jurisdiction to proceed to arrest the police authorities or administrative action, such as the judicial police, the Public Security Police, the marine police, the National Republican Guard, the Food and economic Safety Authority and the General Inspectorate of cultural activities. 3-the sentence to judge the merits of the lawsuit, lost the State declares the objects in which to manifest a crime provided for in this code as well as all goods that have served or were designed directly serving the illicit practice, being copies or copies destroyed, without the right to any compensation. 4-the judge, considered the nature and quality of the goods confiscated in favour of the State, and since the aggrieved raises no objection, you can assign them to public or private entities, not-for-profit, that the use in non-commercial activities that promote culture, education, scientific research and social solidarity.
Article 205 [...] 1-(...) 2-(.) 3-4 (...)-can be given the publicity of the judgment, apply mutatis mutandis the provisions of article 211-C.
Article 206 [...] The responsibility for processing the contravention is the General Inspection of cultural activities and the application of the leniency notice its Inspector General.
Article 209 administrative precautionary measures the author, the holder of related rights or their representatives, may require police and administrative authorities of the place where there is a violation of their right to immediate suspension of representation, recitation, performance or any other form of use of a protected work or service that are 5 performing without proper authorization and can still request the arrest cumulatively, of all revenue arising from that use.
Article 211 [...]
1-Who, with intent or mere blame, violates copyright or related right, is obliged to compensate the injured party for damages resulting from the breach. 2-the compensation referred to in the preceding paragraph must be requested to the Court by the injured person or their representatives. 3-in determining the amount of compensation for pecuniary damage and losses, the Court must meet inter alia the importance of the revenue obtained by the infringer as a result of the unlawful activity and to lost profits and damages suffered by the victim. 4-the impossibility of the victim to quantify the amount of injury suffered in accordance with the provisions of the preceding paragraph, and since this raises no objection, can the Court, Alternatively, establish the patrimonial damages based on other elements such as at least the wages that would have been received by the injured party if the infringer had requested authorisation to use the right in question or the value corresponding to the revenue that would be received by the injured party if the offender had acquired authorized copies of the work or provide protected. 5-When the conduct of the offender is particularly malicious is practice is especially serious or repeated, can the court determine compensation for patrimonial damage using cumulatively the criteria of paragraphs 3 and 4. 6-If the victim so requests, and regardless of compensation to be determined pursuant to the preceding paragraphs, the Court must still meet the damages by him sustained and, where appropriate, to charges incurred by the injured party in the creation, protection and exploitation of their rights. 7-In any case, the Court shall fix an amount proportional and reasonable, intended to cover the costs and expenses that the victim incurred as a result of the investigation of illicit actions by he developed with a view to the cessation of the infringement, to determine on the basis of duly substantiated costs, or if the aggrieved raises no objection, based on criteria of equity , reasonableness and proportionality.
6 article 2 additions to the Code of copyright and related rights Are added to the Code of copyright and related rights, approved by Decree-Law No. 63/85, of March 14 and amended by laws No. 45/85 of September 17 and no. 114/91 of September 3, by Decree-Law No. 332/97 and 334/97 , both of 27 November, and by law No. 50/2004, 24 August and no. 24/2006, of June 30, articles 209-209-B, 209,-C,-D, 209-209 and 209-F, G-209.209-H, 211-A, 211-B and 211-C with the following wording: Article 209-the competence and conduct of Precautionary Procedures
1-is competent to decide any of the measures provided for in this chapter the Court of the domicile, registered office or place of effective management of the defendant's domicile or registered place of business of the applicant or of the place where the offence is being committed or where it is on the verge of consummating. 2-whenever the opposing party put at risk the effectiveness or the purpose for which it is intended the Providence or when the delay on your must exist might harm irreparably the right of the applicant, the measures provided for in this chapter shall be imposed without hearing the defendant. 3-where the provisions are enacted without prior hearing of the defendant this will be notified immediately after their execution, and may require a review of or appeal the decision. 4-In case of injury or threat of serious injury and difficult to repair, which requires the taking of appropriate measures to prevent the infringement or the continuation of the infringement, in particular in case of violation of rights committed by electronic means, the Court shall impose as soon as you present the application, an appropriate measure to prevent or to end that threat. 5-in the cases referred to in the preceding paragraph, if not consider who is entitled to issue an immediate decision on the merits, the Court shall schedule a hearing to produce proof, within the eight days following the entry of the application in the registry of the Court, being the witnesses, in maximum number of five, all the present by the applicant, unless this has required its notification.
7 6-in the period laid down in the preceding paragraph, the Court may invite the applicant to gather additional evidence. 7-to the precautionary measures provided for in this regulation are applicable in the standards of the code of civil procedure.
Article 209-B precautionary measures for Defence of law 1-Without prejudice to the precautionary measures provided for in the law of civil procedure and precautionary measures provided for in the law of criminal procedure, where the applicant proves the existence of a violation of their rights or the serious risk of their right being violated, can the Court at the request of the person concerned , enact the measures deemed appropriate in particular: a) prohibit the continuation of the infringement; b) Prevent any impending infringement; c) Subjecting the continuation of the activity of the defendant to the lodging of guarantees intended to ensure compensation to the holder of the right. 2-the provisions laid down in (a)) and (b)) of the preceding paragraph may also be enacted against intermediaries whose services are used by a third party in violation of copyright or related to copyright. 3-the Court shall, at the request of the applicant, enact a periodic penalty payment in order to ensure the application of the arrangements referred to in (a)) and b) of paragraph 1 and paragraph 2 of this article. 4-the applicant shall submit the evidence reasonably required and available to demonstrate, even though indiciariamente, the existence of the right, your ownership or legitimacy to act on behalf of the holder as well as the verification of a violation or imminent risk of a violation of the right in question. 5-in the decision on the injunction required should the Court take into account the specific nature of the right relied on, and in particular, to their exclusive nature, always attempting to ensure that the measures applied in particular allow the applicant the full exercise of the faculties of use and exploit economically their work or performance and to authorize or to prohibit a third party from such use or exploitation.
Article 209-8 C 1 Attachment-where the applicant proves the existence of a violation of their rights or the serious risk of its right be infringed, the Court may, at the request of the interested party, order the seizure or delivery of goods suspected of infringing copyright or neighbouring rights and instruments that can be used for the illicit practice in order to prevent their entry into or movement within the channels of Commerce or of ensuring the preservation of evidence. 2-In case of infringement on a commercial scale, actual or imminent, and where the applicant proves the existence of circumstances likely to endanger the recovery of damages, the Court may, at the request of that, ordering the seizure of movable property, immovable property and other rights of the alleged infringer, including the balances of the bank accounts, and may for that purpose to order the communication or access to data , information and banking, financial or commercial documents relating to the offender. 3-the provisions of paragraph 4 of article 209-b. 4-the measures set out in this article are enacted without hearing the opposing party, and apply the provisions of article 209-and, in the alternative, the General rules of procedural law governing the attachment.
Article 209-D protective measures for the preservation of Evidence 1-at the request of the victim and where it shows the violation of their rights or the risk of their right being violated, can the Court impose the necessary measures to preserve relevant evidence of the alleged violation. 2-measures for the preservation of evidence may include, among others that are appropriate and effective in particular: the effective seizure of goods) suspected of infringing copyright or neighbouring rights; b) effective seizure suspected materials or instruments are being or will be used for the illicit practice or to distribute the goods referred to in the preceding sub-paragraph;
9 c) the seizure of documents relating to the goods or materials referred to in points (a) or instruments which might be evidentiary means unlawful practice; d) the detailed description of the goods, materials, instruments or documents referred to in the above. 3-the applicant shall provide all reasonably available evidence to demonstrate, even though indiciariamente, according to the circumstances of the case, the infringement or the imminent risk of a violation of the right in question. 4 – the confidentiality of the data and information contained in goods and documents seized or listed without prejudice to the merits of the application or the implementation of diligence specifically enacted and, in such event, the Court ensure safeguarding the protection of confidential information being applicable, mutatis mutandis, the provisions of article 519 of the code of Civil procedure. 5-Always to understand performance of due diligence should be for enacted, in view of the specific circumstances and the nature of material goods, instruments or documents in question, the Court shall designate, ex officio or at the request of the victim, and an expert that will come from the stage. 6-the provisions set out in this article are enacted without hearing the opposing party, since that show filled the legal requirements.
Article 209-responsibility of the applicant 1-The provisions laid down in articles 209-B,-C, and 209-209 D shall apply the provisions of article 390.º of the code of Civil procedure. 2-in the setting of the security referred to in paragraph 2 of article 209 of the code of civil procedure, the Court must meet the specific circumstances of the case, the risk of harm arising from the verification must exist of Providence and economic conditions of the applicant.
Article 209-10 F Measures for obtaining evidence 1-at the request of the applicant, the Court may order the production of any evidence of an actual or imminent violation of the right relied on, which are in the possession of the opposing party, as well as the measures or deemed appropriate for the cominações the event of failure. 2-In your claim, the injured person should present the evidence reasonably available and sufficient to substantiate their claims, and specify the evidence which could support that predictably in the defendant's power. 3-For the purposes of the preceding paragraph, he shall be deemed to be reasonable and sufficient evidence, namely, a reasonable sample of copies of a work, performance or any other object protected. 4-where are concerned acts that violate copyright or related to commercial scale, the Court can still order, under the conditions laid down in paragraphs 1 and 2, the presentation of banking, financial or commercial documents which are under the control of the opposing party. 5-the provisions of paragraph 4 of article 209-D shall apply to measures enacted pursuant to the preceding paragraph. 6-the measures provided for in this article may be requested through the protective means, by applying the provisions of article 209 or pursuant to article 528.º of the code of Civil procedure.
Article 209-G 1 – obligation to provide information at the request of the applicant the Court may order the provision of information on the origin and distribution networks of goods or services that allegedly violate copyright or related rights, as well as the measures deemed appropriate cominações or, in the event of non-compliance. 2-the information referred to in the preceding paragraph, may include, inter alia: a) the names and addresses of the producers, manufacturers, distributors, suppliers and other previous holders of the goods or services, as well as wholesalers and retailers recipients;
11 b) information on the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the goods or services in question. 3-the provision of the information referred to in the preceding paragraph may be ordered to the offender or:) who have been found in the possession of goods on which fall founded suspicion resulting from acts that violate copyright or related to copyright on a commercial scale; (b)) who have been found to use services which fall founded suspicion of infringing copyright or related to commercial scale. c) who have been found to provide, on a commercial scale services which fall founded suspicion of infringing or being used to violate copyright or related to copyright; d) who have been appointed by the persons referred to in paragraph 1(a) above, as having taken part in the production, manufacture or distribution of those goods or services. 4-the preceding paragraphs shall not prejudice the application of other laws that Give the person concerned the right) the most extensive information; b) Govern the use of information obtained in civil or criminal proceedings; c) Govern responsibility for misuse of right to information; d) Confer the right to not provide statements that may require any of the persons referred to in paragraph 1 to admit to his own participation or the participation of close relatives in the practice of unlawful acts; and Give the right to invoke) professional confidentiality, the protection of confidentiality of information sources or the legal regime of protection of personal data. 5-in your application, the injured party must justify their request, specify the information you want to obtain and present the evidence reasonably available and sufficient current or imminent infringement of his right. 6-is correspondingly applicable the provisions of paragraph 3 of article 209 – 7-the measures provided for in this article may be requested through the protective means, by applying the provisions of article 209, or in accordance with and at times to request evidentiary measures pending a court action for the defense of copyright or related rights.
Article 209 12-H commercial Scale for the purposes of paragraph 2 of article 209-C, paragraph 4 of article 209-F and paragraph 3 of article 209-G, acts committed on a commercial scale, all those who have designed an economic advantage or direct or indirect commercial, for one who practices or to third parties, excluding therefore the acts done by end consumers , acting in good faith, provided that such acts do not reach the normal exploitation of the work or cause unjustified prejudice to the rightholder.
Article 211-corrective measures 1-without prejudice to the fixing of compensation for damages, the court order of merit may, at the request of the victim and the expense of the infringer, determine measures relating to goods in respect of which there has been violation of copyrights or related to copyright, as well as in relation to materials and instruments that have been used predominantly to commit the infringement. 2-the measures provided for in the preceding paragraph must be appropriate, necessary and proportionate to the gravity of the violation and must meet the interests of third parties who are in good faith, and may include, among others: a) the withdrawal of the channels of Commerce; b) definitive exclusion from the channels of Commerce; or c) 3-destruction is correspondingly applicable, mutatis mutandis, the provisions of paragraphs 3 and 4, article 201.
Article 211-B injunctions 1-the damning judgment can still impose on the offender a measure to inhibit the continued practice of infringement. 2-the measures provided for in the preceding paragraph comprise, in particular: a) the temporarily ban of certain activities or professions;
13 (b)) the deprivation of the right to participate in trade fairs or markets; c) the temporary or permanent closure of the establishment. 3-the Court may also, of its own motion or at the request of the applicant, grant, a periodic penalty payment in order to ensure the application of the measures provided for in the preceding paragraph. 4-the provisions of this article shall apply to any intermediary whose services are being used by a third party in violation of copyright or related rights. 5-the Court may also, of its own motion or at the request of the aggrieved, convert, modify or establish for the future any restraining order or measure enacted provisionally in the main action or in their attached. 6-the provisions of this article shall be correspondingly applicable, mutatis mutandis, to the judgments of criminal nature.
Article 211-C Condemnatory decisions 1-Advertising in the criminal proceedings, ex officio or at the request, and in civil proceedings, the request of the victim, can the court order, at the expense of the infringer, the publication of the final decision. 2-the publicity referred to in the preceding paragraph may be made through dissemination in any medium of communication considered appropriate. 3-the publicity is made by extract, containing the elements of the offence and the penalties imposed, as well as the identification of the offenders.
Assembly of the Republic, July 5 2007 Meps ANTÓNIO FILIPE, JOÃO OLIVEIRA, MIGUEL James, BERNARDINO SOARES, JORGE MACHADO, LUÍSA MESQUITA, BRUNO DAYS
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