Research Handbooks in Intellectual Property series
Edited by Estelle Derclaye
Chapter 4: The Subject-Matter for Film Protection in Europe
3 Subject matter Tanya Aplin Introduction This chapter examines the extent to which the European Union (‘EU’), in the field of copyright or droit d’auteur,1 has adopted harmonized notions of subject matter and whether a unified approach to determining protectable subject matter should be adopted in the future. The discussion occurs in several sections. Sections 1 and 2 set the scene by addressing the international position under the Berne Convention for the Protection of Literary and Artistic Works 1886 (‘Berne’) and the basic differences between EU Member States. Section 3 discusses the EU harmonization of copyright law protection of subject matter to date, while Section 4 assesses the extent to which this harmonization has been successful. Finally, Section 5 analyses whether further harmonization should occur, in particular, in respect of the definition of computer programs, and whether there should be a unified ‘open list’ or ‘closed list’ approach. 1. International position In considering the scope of subject matter protected by copyright or droit d’auteur the logical starting point is, of course, Berne. Article 2(1) of Berne stipulates that ‘the expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression’ and goes on to provide an extensive but nonexhaustive list of examples. Some of the more notable works listed are: books, lectures, dramatic works, musical compositions, cinematographic works, paintings, sculptures, photographic works, and works of applied art. The principles of national treatment and...
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