Chapter 4: The application of copyright law to outer space activities
will be explored using four hypothetical cases, which will form the basis of discussion in the infringement section of this chapter.
For copyright to subsist in a work, the work must first fall within one of the categories specified in the legislation. Under the Berne Convention,441 literary and artistic works are the subject of protection. Article 2(1) of the Berne Convention provides an expansive definition of ‘literary and artistic works’ as including ‘every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression’. With such an expansive and non-exhaustive definition, the Berne Convention leaves room for member countries to include other works within the scope of copyright protection, at their discretion.442 Thus, the subject matter of copyright varies from country to country. Some jurisdictions have enacted legislation containing an exhaustive list of protectable subject matter, whereas others (like the Berne Convention) define potentially protectable works in open-ended terms.443
The UK’s Copyright, Designs and Patents Act 1988 (‘CDPA 88’) stipulates that only eight types of works qualify for copyright protection.444 In contrast, US copyright legislation provides an open-ended type of protectable works. Section 102 of the US Copyright Act states that ‘copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression; works of authorship include the following categories …’ Here, use of the term ‘include’ signifies that protectable works are not limited to those specifically categorized in...
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