Book Chapter: The Foundations of the Concept of Work in European Copyright Law

Abstract

The subject of this chapter, the delimitation of the concept of work in European copyright law, has two aspects; one more controversial, about how far a common definition of the concept of work is desirable; and one more pragmatic, about the extent of the effective harmonization of the concept of work at the European level.The interpretative contribution of the CJEU was in some cases inevitable to clarify the scope of copyright protection and the ambit of harmonization. In line with a series of cases brought before the CJEU, the decision in the Infopaq case demonstrates the determination of the European Court to affirm the acquis communautaire in the copyright field and to drive the harmonization process further forward.However, it is still rather uncertain whether a complete harmonization of the subject matter of copyright has been achieved. The conceptual core of the European originality standard could not easily be further refined without jeopardizing national sensibilities and concessions. At the same time, other divergences between the common law and the continental author’s right (‘droit d’auteur’) legal traditions could undermine any harmonization of the concept of work, such as the precondition of ‘fixation’ or the dichotomy between copyright systems which opt for an open or a closed list of categories of protected works.

Keywords: Copyright Law, Concept of Work, Originality, Closed Subject Matter, Fixation, CJEU