Copyright and its Categories of Original Works

Abstract

In this paper the categories of expressive (literary, dramatic, musical and artistic (LDMA)) works in which copyright subsists are considered, and an argument made that the Legislature's division of protected works into categories is appropriate given the psychology of art appreciation, and the fact that in order to perceive a work qua work one must perceive it in relation to a category of work. Nonetheless, an argument is also made that the statutory definitions of LDMA works suffer from the defects of formalist theory. Those defects are outlined, and an alternative theory of works proposed, drawing on the work of art theorist Kendall Walton and the intentional, historical view of the work outlined in a recent paper. According to that theory, LDMA works are constituted in part by their properties of form and in part by the history of their individual production. Consistent with this, the statutory categories of work are cast as denoting different authorial traditions: evolving traditions of human expression that exist and are experienced in a particular social context. In addition to its general (explanatory and normative) value for copyright, this theory has specific implications for the Legislature's expression of the categories of work in which copyright subsists.