PLR in Portugal

portugal

The 1992 EU Lending Right Directive was transposed into the Portuguese legal system by a decree of November 1997.

When transposing the Directive, the Portuguese Government made use of the exemption provided for in Article 5 (3) of the Directive which allows a Member State to exempt certain categories of establishments from the obligation to pay remuneration to authors for the public lending of originals and copies of their works.

As the Community Directive is not restrictive regarding the type of establishment that can benefit from such exemption, under article 6 (3) of the decree “public libraries, school and university libraries, museums, public archives, public foundations and non-profit private institutions” are exempted from the obligation to pay remuneration for public lending.

The Government defended the wide-ranging nature of the exclusion on the grounds that the country’s cultural development level and the need to encourage reading made it advisable to make broad use of the exemption.

The European Commission considered the Directive's transposition by the Portuguese government as inadequate and brought an action against the Portuguese Republic at the European Court. At the same time the Commission brought actions against several other Member States for the same reasons. The Commission’s position was that that Article 5 (3) of the Directive allows Member-States to exempt “certain categories” of establishments from payment of remuneration normally guaranteed by Article 5 (1), by way of derogation from the exclusive public lending rights provided in Article 1. Nevertheless, Article 6 (3), of Portuguese Decree of 1997 exempted all public, school and university libraries, museums, public archives, public foundations, non-profit private institutions and many other types of library. In fact, as a result of the exemption no publicly funded library would be eligible for PLR.

The Court took the view that ‘the Portuguese Republic has failed to fulfil its obligations under Article 5 (1), in conjunction with Article 1 of the Directive”. The Court, in a judgement given on July 6th, 2006, declared that “the Portuguese Republic, by having exempted all categories of establishments from the obligation to pay remuneration to authors on public lending, has failed to fulfil its obligations under Article 5, in conjunction with Article 1, of Council Directive 92/100/EEC, of 19 November 1992, on rental right and lending right and on certain rights related to copyright in the field of intellectual property”.

The Portuguese government responded to the Court’s judgement by reducing the number of institutions benefiting from the exemption of payment of PLR, but continued to exempt public libraries, school and university libraries. The decision to exempt public libraries was justified as a measure of cultural policy, with the goal of assuring the widest possible access to cultural assets, education and information.

With the continued exclusion of public libraries there is no PLR system in Portugal.

(updated november 2008)