Protection of Software
Protection of Databases
This overview provides a summary of information technology law in selected areas. In 1999 there were no major changes to legislation regarding information technology.
Software is protected by copyright in accordance with Decree-Law 252/94 (October 20 1994), which implements Directive 91/250/EC on the legal protection of computer programmes. This act contains the complete regime applicable to computer programmes and did not amend the Portuguese Copyright Code.
Article 1 of Decree-Law 252/94 states that computer programmes are granted protection analogous to the protection granted to literary works. This is based on Article 1 of the EU directive, which obliges member states to protect computer programmes as literary works.
There is considerable debate in Portugal as to the meaning of the 'reproduction' of computer programmes, which is considered to be the exclusive right of the copyright holder by Article 5 of Decree-Law 252/94. The majority of authors interpret reproduction as the 'physical multiplication of copies'. This interpretation excludes acts such as downloading and transmission by electronic mail and has yet to be tested by the courts.
Article 48 1(d) of the Portuguese Industrial Property Code does not permit computer programmes to be patented. This means that in Portugal it is not possible to obtain a patent of a computer programme, but an invention that contains software among other elements may be patented.
Directive 96/9/EC (January 1 1998) on the legal protection of databases has not yet been implemented in Portugal. As a result, the European Commission has launched infringement proceedings against Portugal. These proceedings are in the 'reasoned opinion' phase.
As the directive has not been implemented, the only legal protection conferred on databases is the protection granted to compilations by Article 3 of the Copyright Code, which considers compilations to be equivalent to original literary works.
Data protection is governed by Law 67/98 (October 26 1998), which implements Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of personal data.
In 1999 the National Commission for Data Protection (the Portuguese supervisory authority) published six authorizations allowing certain types of data to be exempted from the notification process. These include information on the following:
- employees' salaries;
- library and archive users;
- client invoices and supplier contacts;
- administrative management of employees;
- entry and exit of people in buildings; and
- payment of member's fees to non-profit associations.
Law 109/91 (August 17 1991) regulates computer crime. The Portuguese law took its principal inspiration from the Recommendation R (89) 9 of the Council of Europe. The law covers six main areas:
- false data;
- computer damage;
- illegitimate access;
- illegitimate interception of communications; and
- reproduction of legally protected software.
The maximum penalty for violations of this law is five years imprisonment.
For further information on this topic please contact Luís Miguel Pais Antunes or Daniel Reis at AM Pereira, Sáragga Leal, Oliveira Martins, Júdice e Associados by telephone (+351 21 319 73 03) or by fax (+351 21 319 73 09) or by e-mail ([email protected] or [email protected]).