PORTUGAL Law and Practice Contributed by: João Valadas Coriel, Sofia Quental, António Vieira and Inês Grácio, Valadas Coriel & Associados
Collective Artworks If the artwork is created under the initiative and co- ordination of a single person or entity, and individual contributions are not distinguishable or separable from the whole, it is considered collective. In such cases, the economic rights shall belong solely to the entity or person who co-ordinated such artwork and in whose name it is published or disclosed. However, if it is possible to distinguish the personal production of one or more collaborators in the col - lective work, the provisions regarding works made in collaboration will apply to the rights over that personal production. Collaborative Artworks If the artwork is disclosed or published in the name of two or more authors, it shall be considered a col - laborative artwork, regardless of whether or not the individual contributions can be distinguished. In such cases, the copyright shall belong to all authors who have collaborated on the artwork conception, in equal parts, unless otherwise stipulated in writing between them. Such authors may: • request the disclosure, publication, modification or economic use of a work produced in collabora - tion – in the event of disagreement, the issue shall be resolved in accordance with the rules of good faith; and • individually exercise the rights relating to their personal contribution, if such contributions can be distinguished. If the artwork is disclosed without reference to one of the authors, it shall be considered that such author has waived its rights in benefit of the remaining authors. Those who have merely assisted the author in the pro - duction and dissemination or publication of the work are not considered collaborators, and do not therefore participate in the copyright of the work. The copyright on a collaborative work remains in effect for 70 years following the death of the last sur - viving collaborator, ensuring continued protection of the rights until all contributors have passed away. However, if individual contributions within the work can be clearly distinguished, the copyright for each
contributor’s portion is determined individually, last - ing 70 years from the death of each author, regard - less of whether the work was published or disclosed posthumously. International Collaborative Works Given the cross-border nature of many artistic col - laborations, determining the applicable law is criti - cal. Portugal is a party to the Berne Convention for the Protection of Literary and Artistic Works, which ensures national treatment and minimum substantive standards of protection. As a general rule, copyright remains territorial. The law of the country for which protection is claimed (lex loci protectionis) governs infringement, the scope of rights, limitations and remedies. Accordingly, Portu - guese law applies to acts occurring in Portugal; other jurisdictions’ laws apply to acts occurring there. Questions of initial ownership may require a separate conflict-of-laws assessment, typically focusing on the jurisdiction most closely connected to the crea - tion of the work (eg, place of creation, first publica - tion or habitual residence of the author(s)). Within the EU, substantive harmonisation exists in key areas (eg, term and economic rights), but authorship and moral rights remain largely governed by national law. In practice, international collaborative works should be governed by clear written agreements address - ing the qualification of the work, allocation of shares, decision-making mechanisms, exploitation rights, applicable law and dispute resolution. In cross-border projects, contractual structuring is decisive in mitigat - ing fragmentation risks. Digital Environment In the digital environment, the use of pre-existing works in artificial intelligence (AI) systems does not, in itself, transform the resulting output into a collabora - tive or collective work with the original authors. How - ever, where a protected work or identifiable elements thereof are reproduced, adapted or incorporated with - out authorisation, issues of infringement and violation of moral rights – including the right of attribution – may arise. In the case of collaborative works, the licensing of content for AI-related uses generally requires the
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