Between Scylla and Charybdis: a comparative look at copyright’s protected subject matter and the (CJ)EU harmonization

Abstract

... Vague, non-intuitive, sometimes even arbitrary: those words are used to describe copyright’s subject matter. Not even the rise of artificial intelligence helps scholars answer the most crucial (but, nomen omen, not original) question of what is protected under copyright law. Although the European Court of Justice (CJEU) defends the simplicity in the answer of ‘author’s own intellectual creation’,1 the definition of copyright work is more complex. This article investigates those doubts on the basis of the compliance of closed list subject matter introduced in the UK system. The first part focuses on a comparative look at the classification of works in the UK and continental jurisdictions. The second part investigates existing CJEU jurisprudence regarding copyright’s subject matter and the evolution of the notion of work from the court’s early decisions. The last part focuses on recent interpretations of the CJEU decisions and the problem of adjusting the UK closed system to the harmonization standard introduced by the court.