Transposition of Directives (EU) 2019/789 and 2019/790 of the European Parliament

SÉRVULO PUBLICATIONS 22 Jun 2023

Directives (EU) 2019/789 and 2019/790 of the European Parliament, on the exercise of author's rights and related rights: transposition by Decree-laws 46/2023 and 47/2023 of June 19, respectively.

After more than 2 years have passed since the deadline for transposition of Directives (EU) 2019/789 and 2019/790 - concerning the exercise of author's rights and related rights in online transmissions of broadcasting organizations, in the retransmission of television and radio programs; and in the digital single market -, on June 19th, the Decree-Laws in compliance with this obligation were published in “Diário da República”: Decree-Law 46/2023 and Decree-Law 47/2023.

As far as Decree-Law No. 46/2023 that transposed the Directive (EU) 2019/789 is concerned, it came:

• To define the regime applicable to online ancillary services, complementary to broadcasting services of works and other materials protected by copyright and related rights;
• To regulate the exercise of author's rights and related rights in the retransmission of television and radio programs, extending, in part, the protection regime in cable transmission provided for in Decree-Law no. 333/97 of November 27. Within the scope of this regime, the following stands out:

(i) The need for authorization from the holders of author's rights and related rights, in the exercise of their exclusive right of communication to the public, for acts of retransmission of television and radio programs;

(ii)  An obligation to transfer to a collecting management entity, by those same holders, their exclusive right of communication to the public;

(iii) The right of rightholders to adequate remuneration for the retransmission of their works and other protected subject matter;

• Define the regime applicable to broadcasters that transmit by direct injection;

As for Decree-Law No. 47/2023, which transposed Directive (EU) 2019/790, it introduced significant changes to the Author’s Right and Related Rights Code (Decree-Law 63/85, of March 14), namely:

• Creation of a new related right in the legal sphere of press publishers in relation to the use of their online publications by information society service providers in the digital world. Note that authors of works integrated in a press publication, in the digital world, will be entitled to an appropriate share of the revenues that the same press publishers receive for the use of their publications by information society service providers.
• Infringement of the new related right constitutes the crime of usurpation or counterfeiting, as the case may be.
• Strengthening the protection of authors and artists, performers, within the scope of the contracts they enter into for the licensing or transfer for the exploitation of their works or performances, applying, for this purpose, the principle of adequate and proportional remuneration.
• The clauses that stipulate the obligations of equitable remuneration in favor of authors or artists, performers have a mandatory nature.

Ana Mira Cordeiro | ami@servulo.com

Catarina Ferreira da Silva | cfs@servulo.com