Traditional Knowledge Laws: Portugal

Subject Matter of Protection

Article 3 - Traditional Knowledge

(1) Traditional knowledge comprises all intangible elements associated with the commercial or industrial utilization of local varieties and other autochthonous material developed in a non - systematic manner by local populations, either collectively or individually, which form part of the cultural and spiritual traditions of those populations. That includes, but is not limited to, knowledge of methods, processes, products and designations with applications in agriculture, food and industrial activities in general, including traditional crafts, commerce and services, informally associated with the use and preservation of local varieties and other spontaneously occurring autochthonous material covered by this Decree.

Beneficiaries or Rightholders

Article 9 - Applicant for Registration

(1) An application for the registration of plant material covered by the provisions of Article 4(1) may be filed by any entity, whether public or private, individual or corporate, that fulfils the following conditions:
      (a) as required by paragraph (2) below, it represents the interests of the geographical area in which the local variety is most widely found or where the spontaneously occurring autochthonous material displays the greatest genetic variability; 
      (b) it complies with the provisions of Article 10(3).

Scope of Protection

Article 3 - Traditional Knowledge

(2) That knowledge shall be protected against reproduction or commercial or industrial use or both as long as the following conditions of protection are met:
      (a) the traditional knowledge shall be identified, described and registered in the Register of Plant Genetic Resources (RRGV);
      (b) the description referred to above shall be so phrased that third parties may reproduce or utilize the traditional knowledge and obtain results identical to those obtained by the owner of the knowledge.

(3) The owners of the traditional knowledge may choose to keep it confidential, in which case the regulations shall provide for publication in the registration bulletin referred to in Article 12, which shall be limited to disclosure of the existence of the knowledge and identification of the varieties to which it relates, with the protection conferred by registration being limited to cases in which it is unfairly acquired by third parties.

(4) The registration of traditional knowledge that until it is requested has not been used in industrial activities or is not publicly known outside the population or local community in which it originated shall afford its owners the right to:
      (i) object to its direct or indirect reproduction, imitation and/or use by unauthorized third parties for commercial purposes;
      (ii) assign, transfer or license the rights in the traditional knowledge, including transfer by succession;
      (iii) exclude from protection any traditional knowledge that may be covered by specific industrial property registrations.

(5) The entities defined in Article 9 of this Decree have the right to register traditional knowledge.

(6) The registration of traditional knowledge shall be effective for a period of 50 years from the application therefor, and may be renewed for an identical period.

(7) The provisions of Articles 7, 9, 10, 12, 13 and 14 shall apply mutatis mutandis to traditional knowledge.

Article 7 - Access to and Allocation of Benefits

(1) Access to the germ plasm of the plant material referred to in Articles 2(1) and (2) for the purposes of study, research, improvement or biotechnological applications shall be subject to prior authorization by CoTeRGAPA, the owner of the registration having been heard.

(2) The use, for industrial or biotechnological purposes, of plants or parts thereof included in the plant material referred to in Articles 2(1) and (2), either directly or through application of the active ingredients contained in them, shall also be subject to prior authorization by CoTeRGAPA, and where appropriate by the competent body of the Ministry of the Environment and Land Management, the owner of the registration having been heard.

(4) Access as defined in paragraphs (1) and (2) requires a fair allocation of the benefits resulting from such use, by prior agreement with the owner of the registration.