The Authorial Works Protectable by Copyright

Abstract

This Chapter considers the European conception of the authorial works protectable by copyright, and the approach of the Court of Justice to determining whether an authorial work exists. To that end, it distinguishes three legal issues: the meaning of the term “authorial work”, the essential properties of an authorial work, and the degree to which a subject matter must possess those properties in order to be an authorial work for European copyright purposes. Only once these issues are resolved is it possible to assess a given subject matter and determine whether it is an authorial work requiring protection in fact. The Chapter surveys the current jurisprudence in respect of these issues. In the course of doing so, it suggests that the Court of Justice’s formalistic conception of the constitutive properties of authorial works lacks coherence and fails convincingly to explain existing case law, and is inconsistent with the usual meaning of “authorial works” in ordinary language, and with the nature of copyright as an author’s right.

Keywords: European copyright law, authorial works, subsistence, subject matter, originality, authorship, art theory