4. Law and legislation
Portugal
Last update: June, 2011
Under Article 2, cultural democracy is mentioned:
"The Portuguese Republic is a democratic State based on the rule of law, the sovereignty of the people, plurality of both democratic expression and democratic political organisation, as well as respect for and the safeguarding of fundamental rights and freedoms; its aim is to achieve economic, social, and cultural democracy and to push participatory democracy further."
The Portuguese Constitution has a whole chapter on cultural rights and duties (Article 73-79). Some excerpts:
"In conjunction with the mass media, cultural associations and foundations, cultural and recreational groups, associations for the protection of the cultural heritage, organisations of residents and other cultural agencies, the State shall promote the democratisation of culture by encouraging and guaranteeing access by all citizens to the fruits of culture and cultural creativity" (Article 73 point 3).
With regard to cultural enjoyment and creativity, the Portuguese Constitution states (Article 78):
1. Everyone has the right to cultural enjoyment and creativity, and the duty to preserve, protect and extend the cultural heritage.
2. It is the duty of the state, in co-operation with all cultural agencies:
a) to encourage and ensure access for all citizens to the means and mechanisms of cultural activity, and to correct present imbalances in this respect;
b) to support initiatives to stimulate the broad variety and expression of individual and collective creativity, and a wider availability of cultural works and assets of quality;
c) to promote the protection and increased respect for the cultural heritage, making it a vital element of the common cultural identity;
d) to develop cultural relations with all peoples, particularly those that are Portuguese-speaking, and ensure the protection and promotion of Portuguese culture abroad; and
e) to co-ordinate the policies for culture with other state policies.
Article 70 mentions the cultural rights of young people:
Section 1: "Young people, especially young people at work, receive special protection for the purpose of effective enjoyment of their economic, social, and cultural rights..."
The only "cultural duty" mentioned is the duty to preserve cultural heritage - Article 78, section 1: "Everyone has the right to cultural enjoyment and creation, and the duty to preserve, defend, and increase the cultural heritage."
Last update: June, 2011
The legislation which addresses and defines how the ministry and cultural and arts activities are funded is to be found in two types of legal instrument:
- those which define the organisation of the bodies responsible for drafting and applying sectoral policies; and
- those which provide specific rules on how support to the arts is to be implemented.
The two types of legal instrument are outlined in greater detail in chapter 4.2.
Last update: June, 2011
Some legislation has been introduced since the 1980s to safeguard the position of artists and performers in terms of social security. The debate continues, however, as artists and cultural professionals continue to campaign for the government to set up a specific system of social welfare for them:
- inclusion of artists in the General Social Security Scheme (Decree-Law 407/82);
- special support scheme for artists / writers having difficulty earning a living (Decree-Law 415/82 and Despatch 23605/2006 (Second Series));
- occupational retraining grant for artists or performers (Regulation-Despatch 79/83); and
- special early old-age pension scheme for classical and modern dancers (Decree-Law 482/99).
Artists who are independent (self-employed) professionals - as most are in the arts sector - are covered by the social security scheme for self-employed workers in the event of illness (only if they are covered by the comprehensive scheme, which requires higher monthly contributions), workplace accident and occupational illness, maternity, paternity and adoption, incapacity, old age and death, as well as maternity grants and retraining grants.
Last update: June, 2011
The regulation of fiscal policies and tax laws in the cultural domain is the responsibility of the Ministry of Finance.
The Arts Patronage Act was introduced in 1986 and was followed by new laws, particularly the 1999 Statute of Patronage (Law 74/99), which regulates the different types of patronage and sponsorship, enlarges the area to include patronage of education, environment, sport, science and technologies, and increases the tax incentives available (the highest level is for long term contracts). Changes introduced in 2007 limited fiscal benefits to the public and non-profit sectors (Law 52A/2006).
A number of cultural actors have expressed the opinion that the Arts Patronage Law is too complex and therefore of limited practical use. They argue that it should be revised and made more flexible.
Performing artists are exempt from VAT (Chapter II, Section I, Article 9, paragraph 16b of the VAT Regulation Code).
Benefits associated with income from intellectual property: income from ownership rights in literary, artistic or scientific work, including income from the sale of unique works of art and income from educational and scientific works, when earned by authors resident in Portugal, provided that they are the original owner, are assessed for personal tax purposes at only 50% of their value, net of other benefits. These provisions exclude income from works not of a literary, artistic or creative nature, works of architecture and advertising work (Items 1 and 2 of Article 56 of the Tax Exemption Act).
Last update: June, 2011
For performing arts professionals, Law 4/2008 establishes the legal framework for employment contracts. There are however some unresolved gaps in this law: in addition to the fact that it only applies to sector workers under contract (a very small proportion of the total number of performing and visual arts professionals, who are mostly self-employed), rules relating to professional certification and social security were left undefined.
Other relevant legal documents:
- regulations governing specific careers in the functional areas of:
- Libraries, Documentation and Archiving (Decree-Law 247/91, as amended by Decree-Law 276/95);
- Museums (Decree-Law 55/2001);
- Archaeology (Regulatory Decree 28/97);
- specific legislation regarding School Libraries Network (RBE) regulating the function of Librarian-Teachers (Order nº 756/2009);
- establishment of the Culture employment and Culture Training (Joint Despatches 243/99 and 244/99); and
- general changes were introduced as part of a new statute for public service careers set in 2008 (Decree-Law 121/2008).
Last update: June, 2011
- Copyright and Related Rights Code (Decree-Law 63/85, as amended by Law 16/2008); regulations regarding copyright duration (Decree-Law 334/97); regulations governing compensation for reproducing or recording (Law 62/98) - transposing European directives;
- Regulations governing Rental and Lending Rights, and certain rights relating to copyright that exempt public libraries, schools, universities, museums, public archives, public foundations and non-profit organisations from the payment of remuneration for public lending (Decree-Law 332/97); and
- Regulations governing resale rights for original works of art (Law 24/2006). Transposes into national law European Parliament and Council Directive 2001/84/CE, of 27 September 2001 (the Resale Rights directive), on the right of resale for the benefit of the author of a work of art, subsequent to the first transfer of the work by that author.
A governmental office for author's rights was established in 1997 (Decree-Law 57/97) to provide information to the public and official support for new legislative initiatives by the government in copyright matters. With PRACE restructuring, this office is now integrated in GPEARI - at the Ministry of Culture.
There are also private institutions for the management of copyright and related rights in terms of the national legislation: the Portuguese Authors Society (SPA, founded in 1925), the Management of Artists and Performers Rights (GDA, founded in 1995) and the Association for the Management of Private Copies (AGECOP, founded in 1998).
Last update: June, 2011
Personal Data Protection Law (Law 67/98) - transposing European directives.
Last update: June, 2011
The Portuguese Constitution establishes Portuguese as the official language (Article 11). In 1999, Mirandês also became an official language (Law 7/99, regulated by Despatch Order 35/99).
In order to acquire Portuguese nationality, applicants must take a Portuguese language test (Order 1403-A/2006).
For legislation concerning the use of the Portuguese language in TV and Radio broadcastings see chapter 2.5.3.
The Portuguese Spelling Agreement was signed by the CPLP's members in December 1990. Its objectives were to encourage the use of the Portuguese language internationally and implement a common set of rules in the signing countries. In Portugal, the Agreement was first approved in the following year (Presidential Decree 43/1991) but, having met considerable opposition by some cultural sectors, a modifying protocol was approved in 2008 (Presidential Decree 52/2008). The Agreement was finally implemented in 2009.
Information is currently not available.
See chapter 4.2.4.
Last update: June, 2011
- the Portuguese Heritage Protection Law (Law 107/2001) establishes the basis for the policy and cultural heritage protection and improvement regime; and
- the Framework Law on Portuguese Museums (Law 47/2004) defines principles of national policies for museums. This legal document establishes guidelines for recognition of Museums and Visiting collections. It also officially establishes and develops the Portuguese Network of Museums (RPM) - a former project structure launched in 2000.
Last update: June, 2011
The legislation mentioned in chapter 4.2.4 also applies to the arts sector, including performing and visual arts.
Last update: June, 2011
Rules for the state funding of the arts through the Ministry of Culture (Directorate-General for the Arts):
These rules were approved under Decree-Law 225/2006, of 13 November 2006, which defines its objectives as the consolidation and sustainability of a network of technically and professionally qualified independent cultural actors, allocated in a balanced way across the country's various different regions. The legislation defines the ways in which the ministry should intervene, with a view to tying its measures in with other sectoral policies.
This Decree-Law was amended by Decree-Law 196/2008 of 6 October, which introduced support for creative activities and cultural programming, or a mixture of both, which seek to compensate for weaknesses in terms of publication, artistic training, internationalisation and facilities.
Rules governing direct and indirect support for the arts as provided for in Decree-Law 225/2006, of 13 November 2006:
Government Order 1204-A/2008, of 17 October 2008, approved the regulations for direct and indirect support to the arts provided for in Decree-Law 225/2006, of 13 November 2006. It was amended by Government Order 1189-A/2010 of 17 November 2010, with the aim of specifying its objectives more precisely and clarifying the underlying concepts.
Last update: June, 2011
The most significant legislation produced in the field of books concerns networking of municipal public libraries (RNBP) and school libraries (RBE), which is in line with the principles of decentralisation and cultural participation.
The RNBP was initiated in 1987 (Decree-Law 111/87) to construct and develop municipal libraries according to principles outlined in the Manifesto of UNESCO. The programme is based on the creation of partnerships between central and local administrations, which assist in modernising the public libraries.
The recent Law 22/2010 dated 22 August 2010 exempts from Value Added Tax those transfers of books which are made free of charge for subsequent distribution to the disadvantaged, to private charitable institutions and to non-profit-making non-governmental organisations, as well as transfers of books free of charge to the government department responsible for culture, educational and cultural institutions, centres for the educational rehabilitation of offenders, and prisons.
Last update: June, 2011
Film, video and photography
In 2004, after a long period of public discussion, the Law on Audiovisual and Cinematographic Art (Law 42/2004 and Law 227/2006) was approved by the parliament. A new law has been the object of public debate, but has not yet been presented.
In 2007 the Investment Fund for Cinema and Audiovisual (FICA) was created (Order n. 277/2007). Among its various objectives, the Investment Fund aims to contribute to the integrated development of the audiovisual sector, giving preference to interventions oriented towards raising the sustainability of cinematographic and audiovisual activities, boosting the creative and competitive capacity of small and medium enterprises (SME) and increasing the penetration of works produced or co-produced by these SMEs into international markets, thereby increasing the added value of the sector and increased business opportunities. This Law extends the range of measures which support the cinema and audiovisual sectors by creating an investment fund that is co-financed by film and television distributors and operators, in particular cable TV operators. As with the new law project, alterations to the investment fund have been discussed (namely further extending funding sources to digital platform partners), but have not yet came into place.
Mass media
The Television Law (Law 27/2007) stipulates that at least 50% of air time must be allocated to broadcasting Portuguese language programmes and at least 20% must be allocated to broadcasting creative works in Portuguese (see chapter 2.5.3).
In 1981 the first legal instrument establishing quotas concerning the radio diffusion of Portuguese music (Law 12/81) was approved by the parliament. The Radio Law (Law 4/2001, as amended by Law 7/2006) commits broadcasters to an annual minimum quota for the dissemination of Portuguese music (see chapter 2.5.3).
The company holding the state radio and TV concession was reorganised in 2007 (Law 8/2007).
See chapter 4.2.2.