Overdue implementation of IP Enforcement Directive tackled


The Portuguese government has issued draft amendments to its Copyright Law and Industrial Property Code with a view to harmonizing their provisions with those of the IP Rights Enforcement Directive, which should have been implemented by April 29 2006.

The draft changes to the Copyright Law come from the Ministry of Culture. That draft is strongly criticized by IP stakeholders, which have already obtained the deletion of two articles relating to appeal procedures and complementary sanctions. The Bar Association, in particular, finds that the draft does not follow the Ministry of Economy's policy on pushing technical knowledge and innovation to drive the economy.

The other draft text, issued by the Ministry of Justice, proposes to amend the Industrial Property Code implemented in 2004 (see Implementing regulation of Industrial Property Code in force). The code itself has been criticized because, among other things, the legislator downgraded acts of unfair competition from criminal offences to a type of administrative offence based on the German model of Ordnungswidrigkeiten, which has proved ineffective in Portugal.

The main concerns expressed by the Bar Association, however, are linked to:

  • the need to clarify the law with regard to the amount of compensation granted by the courts to victims of IP infringements; and

  • the need to make clear the nature of IP rights, which are monopolies permitting their owners to stop any unauthorized use by third parties.

Due to the importance of intellectual property and the protection of innovation in the country's development strategy, Portuguese IP lawyers are now pushing for a reform of the court system in order to train specialist IP magistrates. In parallel, representatives of the software and biotechnology industries, artists, publishers, fashion designers and trademark owners have launched a movement called 'Compromisso PI' (IP commitment) under the principle that protecting intellectual property is an important common goal.

Manuel Lopes Rocha, AM Pereira Sáragga Leal Oliveira Martins Júdice E Associados - Sociedade De Advogados - RL, Lisbon

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