PORTUGAL Law and Practice Contributed by: João Valadas Coriel, Sofia Quental, António Vieira and Inês Grácio, Valadas Coriel & Associados
may be minted and traded globally with relative ano - nymity. The use of pseudonymous wallets, virtual private networks (VPNs) and decentralised platforms may complicate identification of parties, determina - tion of jurisdiction and enforcement of rights. The legal nature of NFTs is not uniform. Depending on their structure, NFTs may incorporate or reference multiple elements, including intellectual property rights, contractual licences, access rights or other util - ities. Smart contracts may automate certain transac - tional aspects but do not necessarily regulate the full scope of rights transferred, particularly in relation to copyright ownership, licensing terms or moral rights. Cross-border transactions raise additional complex - ity regarding applicable law, regulatory qualification and tax treatment, which will depend on the under - lying rights transferred and the status of the parties involved. 9.2 Counterfeit NFTs Under Portuguese law, counterfeit or misleading NFTs can be challenged under copyright, criminal, adminis - trative, civil and consumer protection laws. The notion of “counterfeit NFT” is broad and may encompass unauthorised minting of protected works, use of protected images or derivative content with - out consent, misleading representations regarding authorship or provenance, and NFTs incorporating AI- generated content based on protected works without proper authorisation. It may also include situations where NFTs are marketed under the guise of artistic authenticity while concealing misleading commercial practices, fraudulent schemes (including so-called “rug pulls”), the offering of non-existent utilities or benefits or the raising of funds without an adequate legal framework. Although blockchain systems provide immutable and traceable records of minting and transfers, this tech - nical validation does not verify the legal entitlement of the minter or confirm ownership of the underlying intellectual property rights. The existence of a token on a blockchain does not, in itself, guarantee that it was lawfully issued or that the associated content is free from third-party claims.
Liability is not necessarily confined to the individual minter. Entities involved in the issuance, promotion, sale or intermediation of NFTs – including digital plat - forms, auction houses or other professional operators – may incur liability depending on their role and degree of involvement. Under EU intermediary liability rules, platforms acting as mere hosting providers are gener - ally exempt from liability for user-generated content, provided they lack actual knowledge of infringement and act promptly upon notice. Enforcement remains complex due to the cross-bor - der nature of NFT transactions, pseudonymous users and jurisdictional challenges. Depending on the trans - action structure and operators involved, AML con - siderations may also arise, particularly in high-value transactions or where crypto-assets are converted into fiat currency. 10. Gifts, Donations, Trusts and Inheritance 10.1 Planning for Generational Transfer of Artworks The generational transfer of artworks in Portugal requires careful planning to ensure both legal certainty and tax efficiency. The transfer can be achieved by one of the following mechanisms. • Will: a will is the most common way to ensure the intended succession of artworks. Under Portu - guese law, “forced heirship” rules apply, meaning that the entire estate will automatically pass to the legitimate heirs – ie, spouse (unless otherwise stipulated in a prenuptial agreement), descendants and ascendants – if no will is in place. However, a portion of the estate, known as the “disposable share” (corresponding to one-third of the total estate), can be freely allocated according to the testator’s wishes. If an individual wants to assign a specific artwork to a particular person or entity, this must be expressly stated in a will within the limits of the disposable share. • Lifetime gifts: artworks can be transferred dur - ing the owner’s lifetime through a donation. This approach may reduce future inheritance tax
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