Fair use is a legal notion that allows for use of material protected under the Author’s Right, as long as said use occurs for the purpose of drawing up a critical analysis, a review, a commentary, journalistic contents, or of teaching or research.
Fair use is essentially present in North American legislation, as well as in the Anglo-Saxon system and in systems derived therefrom. In contrast, fair use is practically rejected in its entirety by legal systems emanating from the continental system, such as the Portuguese legal system and the European Union legal system.
In order to be able to consider that the use of a work falls within the concept of fair use so that such use is legitimate, it must meet the following requirements:
a) purpose and type of use;
b) nature of the copied work;
c) quantity and proportionality of the copied work; and,
d) the effect of the use in relation to the potential market or the value of the work under the Author’s Right.
In Portugal, Article 75 and subsequent Articles of the Portuguese Law for Author’s Rights and Related Rights establishes a “Free Use” regime, which contains the general outlines that guide such free use (with special focus on Article 75, paragraph 2). However, such free use does not exempt the user from complying with certain imperative requirements (established by Article 76 of the Portuguese Law for Author’s Rights and Related Rights). Thus, it can be deemed that the Portuguese legislator has opted for a regime allowing ample freedom, as long as in compliance with the rules that aim at protecting the author of the material of his/her authorship.
10 May 2021