PORTUGAL Law and Practice Contributed by: João Valadas Coriel, Sofia Quental, António Vieira and Inês Grácio, Valadas Coriel & Associados
Economic Rights (Direitos Patrimoniais) These are the rights of the artist to financially profit from their work. Contrary to moral rights, as a general rule, economic rights last for 70 years after the artist’s death and can be transferred, licensed and subject to exceptions (eg, certain private or educational uses). The following rights can be considered as economic rights: • the right to reproduce ( direito de reprodução ), which grants control over copying and duplications (eg, prints, digital versions); • the right to distribute ( direito de distribuição ), which governs control over sales, lending and licensing; • the right to public display ( direito de comunicação pública ), which is the right to authorise or prohibit exhibitions, broadcasts or digital usage; • the right to adaptation ( direito de transformação ), which is the right to authorise the adaption of the work in other work formats (such as cinema and/or theatre); • the right to royalties ( direito de remuneração ), under which artists must be compensated for com - mercial use of their work; and • the resale right ( direito de sequência ), entitling authors of original works of graphic and plastic art to receive a percentage of the sale price in quali - fying resales involving art market professionals. Although inalienable and unwaivable, this right is patrimonial in nature, as it grants economic par - ticipation in the secondary market and lasts for the same term as the remaining economic rights. Assignments and licences must be in writing and clearly define scope, duration, territory and modes of exploitation. Transfers are interpreted restrictively, and unspecified forms of exploitation are not presumed to be included. In cross-border and digital contexts, drafting precision is decisive. 2.2 Copyright in Collaborative Artworks The rules for collective or collaborative artworks pro - vided in the Portuguese Copyrights Code shall apply, depending on how the authors made their individual contributions and how the artwork is published/dis - closed.
Portugal’s art law framework is multidisciplinary, inte - grating national and international regulations to safe - guard cultural assets and the art market. In practice, art transactions frequently require paral - lel compliance analysis under cultural heritage, copy - right, AML and tax legislation.
2. Rights to Artworks 2.1 Artists’ Rights Over Their Art
As addressed in other European jurisdictions, the Por - tuguese Copyright and Related Rights Code classifies the artist’s rights over an artwork as moral rights and economic rights. Such rights can be differentiated as follows. Moral Rights (Direitos Morais) These are the rights associated with the connection between the artist and the artwork since its concep - tion. Contrary to economic rights, moral rights are perpetual and persist even after the artist’s death. As a general rule, these rights cannot be sold, transferred or waived, but they may be exercised after death by heirs or the Portuguese state (if there are no succes - sors) upon the death of the artist. The following rights, scattered among various provisions of the Portuguese Copyrights Code, can be considered as moral rights: • the right to attribution ( direito de paternidade ), which is the right for the artist to be credited as the creator of the artwork; • the right of repudiation ( direito de repúdio ), through which the author can renounce the authorship of an artwork; • the right to integrity ( direito de integridade ), which is the right of the artist to protect the integrity of an artwork (and copies thereof) by preventing altera - tions, destruction or distortion; • the right to disclosure ( direito de divulgar a obra ), through which the artist decides when and how the artwork is made public for the first time; and • the right to withdraw (d ireito de retirada da obra do mercado ), which grants the artist the right to remove the artwork from commercial circulation (which may lead to the payment of compensation to third parties).
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