Direito da propriedade intelectual e apropriação cultural

: sobre a (im)possibilidade de proteção das expressões culturais tradicionais portuguesas

Abstract

Traditional cultural expressions and traditional knowledge are an inherent component of a people's cultural heritage and reflect their collective identity. The culture in which these expressions and knowledge are embedded are already protected at a constitutional level, being the State responsible for protecting and safeguarding culture, as a legal good, as well as the material and immaterial cultural heritage. This dissertation proposes to analyze the protection of traditional cultural expressions at the level of Intellectual Property, in order to allow local communities, who have created and protected these expressions of their cultural heritage, to benefit from protection against misappropriation and to control their use. To this end, we believe that the relationship between Intellectual Property rules and the intended protection of TCE should be constructed taking into consideration the balance between, on one hand, the safeguarding and preservation of cultural expressions and, on the other, the free exchange of cultural experience, as a form of creativity and innovation, without which such expressions would eventually “die”. With this objective in mind, we begin by briefly identifying the protection offered to culture and intangible cultural heritage by public law. Next, we seek to identify the essential elements of traditional cultural expressions, comparing them to traditional knowledge, and highlighting national and international legislative initiatives to protect these products. Finally, we turn, at greater length, to an analysis of the legal regimes in force under Portuguese Intellectual Property Law that are likely to protect traditional cultural expressions. Therefore, we will go through the existing legal frameworks, analyzing them as possible ways of protecting those expressions, presenting their advantages and disadvantages.

Date of Award	20 Jun 2022
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Nuno Sousa e Silva (Supervisor)