The right of making available to performers according to Portuguese Copyright Law (CDADC): questions raised by n. 4 of article 178

Victória Rocha

Keywords

Right of making available to the public; performances; WIPO Treaties 1996; Information Society Directive; Performers

Abstract

The right of making available to the public on line and on demand, of article 10 of OMPI Treaty of 1996 (WPPT) and of article 3.2. Directive on Information Society (DIS), concerning performers, was not duly transposed into Portuguese Law- art. 178º of CDADC- thus creating severe errors, namely internal contradictions in the article itself (cf. art. 178º, n. 1, d) and n. 2 and 3 CDCDC) and systematic incompatibilities with art. 183º-A CDADC. All because n. 4 of article 178º establishes mandatory collective management, even for non-members, and for primary exploitation of the performances, withdrawing the individual exclusive right of performers even for primary uses. This is against collective management rules, against Portuguese Constitution, and renders Portuguese regulation incompatible with WPPT and European Law, that must prevail. Thus, n. 4 of 178º CDADC must be interpreted as abrogated and disappear in a future revision of the CDADC, or else our music and audiovisual market will all be delocalized to other countries, creating severe damage in Portugal and violating competence rules in EU.