Copyright as democracy of aspiration: Rethinking EU law’s approach to a protected “work”

Abstract

Copyright has become flawed. Technical production hurdles have disappeared, so we live in a creator economy, where anyone can be an author. Legal boundaries become more important and need to be narrowed. But EU copyright law is developing in the opposite direction, encouraged by the ECJ case law. The concept of a “work”, which was supposed to protect valuable art, has become blurred; as well as works of art, copyright now protects digital traces of everyday life. This is not only a problem of legitimacy for copyright law itself, but entails risks for the fundamental rights of third parties since, in the digital age, we communicate more and more via copyright works. To mitigate these risks, the subject matter of copyright protection needs rethinking. Copyright must take its roots seriously: they lie in the literary, scientific, and artistic domain, as described by the Berne Convention.Without making aesthetic judgements, judges must determine whether someone’s work shows“a will to form”.To be accepted as a“work” and to be protected by copyright law, a subject matter does not need to be a masterpiece, but should at least aspire to be a valuable work. Copyright can thus be understood as “democracy of aspiration”. Copyright, intellectual property, concept of work, art, author’s rights, Berne Convention