For many years, intellectual property (IP) operated as a set of distinct regimes. Trademarks protected brand identity, patents rewarded technical innovation, copyright safeguarded creative expression, and database rights and trade secrets addressed information of commercial value. Each regime had its own logic, its own registration system (where applicable), and its own enforcement toolkit.
That architecture remains in place, but the boundaries between regimes are increasingly difficult to maintain, and a single business asset may now attract protection under multiple legal frameworks simultaneously.
Copyright and design protection in Portuguese and EU case law
Portuguese law already recognises the possibility of cumulative IP protection for a single object. Article 194 of the Portuguese Industrial Property Code expressly provides that a registered design may, from its creation, also benefit from copyright protection under the Copyright and Related Rights Code (CDADC). The CDADC itself, in Article 228, confirms that its protections do not prejudice those conferred by rules relating to patents, registered trademarks, utility models, unfair competition, and trade secrets. Convergence is therefore not merely a practical phenomenon; it is built into the legislative framework.
The Court of Justice of the European Union gave this principle its clearest EU-level expression in Cofemel (C-683/17), establishing that design protection and copyright protection are not mutually exclusive and may apply cumulatively to the same object, but only where the design qualifies as a ‘work’ within the meaning of EU copyright law. The originality threshold – namely, the author’s own intellectual creation reflecting free and creative choices unconstrained by technical function – remains the key dividing line.
Portuguese courts have applied this test in ways that illustrate both its reach and its limits. The Lisbon Court of Appeal held that Secto lamps constituted original works protected by copyright, finding that their design reflected the author’s free and creative choices rather than purely technical considerations (Case No. 253/21.0YHLSB.L1-PICRS, February 5 2024). By contrast, the Supreme Court of Justice declined to extend copyright protection to urban furniture designs whose predominantly utilitarian character prevented them from qualifying as protected works (Case No. 76/14.3YHLSB.L1.S1, September 27 2018).
From cumulative protection to legal convergence
The convergence question is no longer limited to the relationship between copyright and industrial property. Data has become a strategic asset in its own right, and its legal protection draws simultaneously on multiple regimes.
Databases that constitute intellectual creations attract copyright. Those representing a substantial investment are protected by the sui generis database right. Confidential datasets and algorithms may qualify as trade secrets. In practice, the same dataset can engage all three frameworks at once, creating a layered system of protection that businesses must understand and manage effectively.
AI training and text-and-data mining
This layering has acquired particular urgency in the context of AI development. The transposition of the EU Digital Single Market Directive through Decree-Law 47/2023 introduced text and data mining exceptions into the CDADC. Article 75(2)(v) and (w) of the CDADC permit the reproduction of lawfully accessible works for text and data mining purposes unless rights holders have expressly reserved such use in an appropriate manner, notably through machine-readable means in respect of online content.
Rights holders who do not implement effective reservations may find their content used to train commercial AI systems without authorisation or remuneration. For Portuguese publishers, media organisations, and creative sector businesses, managing those opt-outs has become a live IP task, not a theoretical concern.
Building an integrated protection strategy
Navigating this environment requires IP strategy and commercial arrangements to be designed with all relevant regimes in view simultaneously. Contracts governing access to third-party datasets must address IP ownership, licensing scope, text and data mining opt-outs, confidentiality, and, where personal data is involved, data protection in a single instrument. Due diligence on digital assets or AI-enabled products must assess copyright, database rights, trade secret protection, and regulatory compliance as a unified exercise.
For Portuguese businesses operating across technology, media, healthcare, and financial services, the ability to manage IP assets across converging legal frameworks is increasingly a source of competitive advantage and a prerequisite for operating with confidence in a data-driven economy. The most successful organisations will be those capable of viewing intellectual property not as a collection of isolated rights but as part of an integrated legal strategy designed to maximise the value of innovation, content, and data.
