- Research Handbooks in Intellectual Property series
Edited by Estelle Derclaye
Chapter 5: The Requirement of Originality
4 The subject-matter for film protection in Europe Pascal Kamina Introduction In this article we examine the issues raised by the definition of the subjectmatter for protection of audiovisual works in the European Union. This question is an important one, as copyright and authors’ rights systems have very different traditions when it comes to devising protection for audiovisual works. Countries of the authors’ rights tradition, but also certain copyright jurisdictions like the USA, protect audiovisual works as original works of expression, distinct from their recordings or other manifestations thereof. However, the definition of the subject-matter may vary, raising questions as to the protection of certain works associated with or close to audiovisual works. In contrast to this traditional approach, under modern British copyright and in the countries influenced by British law the main subject-matter for film protection is the recording of the work, irrespective of any condition of originality. In certain authors’ rights jurisdictions, this recording (the ‘first fixation of the film’ or ‘videogram’) attracts a protection under a specific neighbouring right, distinct from the copyright in the recorded audiovisual work. As a result, in these countries both the audiovisual work and its recording are protected, but under two separate intellectual property rights, a droit d’auteur on the one hand, and a neighbouring right on the other. Both aspects were covered in the process of European harmonization of copyright laws, which consecrated a double protection through a copyright and a related right, with a different regime in terms of ownership...
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