Future challenges for the European conception of copyright subject matter

Implicit in the discussion to this point has been that an author is a natural person; someone who exploits the scope for free and creative choices afforded by a certain type of expressive object to produce a work that reflects her personality. That is consistent with European legislation, and with the Berne Convention, which make it clear that the existence of an authorial work requires one or more authors,[1] [2] [3] and that authors are, with limited policy-based exceptions, human beings.

4

This returns us to the point in the Introduction, that in Europe at least, both the justifications tor copyright’s existence and the scope of its protections are tied closely and inextricably to the subject matter it protects. From a theoretical perspective, for example, the conception ot authors as persons who, through acts of intellectual creation, instantiate their personhood in expressive objects, reflects a Hegelian view of property, and a distinctively Germanic way of conceiving copyright.sl Consider, tor example, the following description ot “property” in Hegel’s Elements of the Philosophy of Right:

A person must give himself an external sphere ot freedom in order to have being as Idea. ... The rational aspect of property is to be found not in the satisfaction of needs but in the superseding of mere subjectivity of personality. Not until he has property does the person exist as reason. Even if this first reality of my freedom is in an external thing and is thus a poor kind of reality, the abstract personality in its very immediacy can have no other existence than in the determination of immediacy.[4] [5] [6]

This passage was not directed to acts of authorial creation or copyright. Nonetheless, it supports a view of authorship as involving the instantiation of personhood and the realization of individual freedom in the external (non-subjective) sphere, via the creation of objects separate from but reflecting the self. The recognition and protection of those objects by property is defended as a means of protecting individual freedom, by supporting each person’s capacity tor self-expression and through it ot self-creation. Conversely, freedom itself is a means by which each person is able fully to realize her own potential, consistent with the view of western analytical legal philosophers that to be free is to have a sufficient range of choices to be able meaningfully to determine one’s own path and thereby “author” one’s own life.[5] Property then is a right ot personhood and of personality, with copyright being the paradigm.

In European law, these theories of authorship and copyright are clearly reflected; most obviously in the “author’s own intellectual creation” conception of originality, but also in other areas. These include, for example, the efforts of the CJEU: to protect the freedom ot authors to make transformative uses of related rights subject matter;[8] to protect authors from others’ use ot their works to convey discriminatory or other dignity-detracting messages;83 and to require third parties to help authors enforce their copyright.86 They also include the requirement that authors be afforded a high level of protection, and that copyright be available only to authors specifically.8 In contrast to other jurisdictions, where copyright is conceived in purely instrumentalist terms, there is therefore (or should be at least) no scope for protecting by copyright works produced by a machine or animal, including an intelligent one, regardless of the work’s formal expressive properties; a conclusion supported also by the non-formalistic conception of original works proposed above.

Technological developments have long challenged conceptions of copyright as an author’s right in ways of relevance for its subject matter. Photography and computer programming are only two examples of this. More recently, the existence of machines able to generate objects whose expressive properties are indistinguishable from those of traditional authorial works has challenged assumptions regarding the need for a human act to produce objects having certain literary and artistic expressive properties. The result may be to require closer attention than previously to the origins of individual works to ensure that they originate in an act of authorship.88 The increasing sophistication of work-generating machines may also devalue the acts of human authorship protected by copyright, and require authors to develop new business models for exploiting their creative work. Beyond these effects however, the prospect of intelligent machines should pose no conceptual threat to copyright subject matter. What artificial intelligence and other transformative technologies89 do instead is

  • 85 See, e.g., Case C-201/13 Johan Deckmyn and Vrijheidsfonds VZWv. Helena Vandersteen ECLI:EU:C:2014:2132 (3 September 2014) [21]—[22) (deciding that the unauthorized reproduction of a copyright work for parodic purposes will only fall within the parody exception of the InfoSoc Directive if it reflects a fair balance of fundamental rights, including the right of the original author or copyright owner not to have her work associated with a discriminatory message).
  • 86 See, e.g., Case C-275/06 Productores de Musica de Espaiia (Promusicae) v Telefonica de Espaha SAU [2008] ECR-I271 (confirming the liability of information society service providers under the InfoSoc Directive and Directive 2000/31 /ЕС on certain legal aspects of information society services, in particular, electronic commerce, in the Internal Market (2000) OJ L 178/1 to injunctive measures aimed at assisting copyright owners to enforce their copyright against users of the providers’ services).
  • 87 See, e.g., Info. Soc. Dir. Recital (9) (n. 78); Sections 4 and 5.
  • 88 See E Stankova, “From Creativity Requirements Towards Creativity Tests” (unpublished paper presented in Zurich, September 2019; on file with the author) (arguing that attention should be given to whether the tests currently in use by European courts to assess the existence of an authorial work are able to distinguish human-generated from machine-generated objects, and that the tests in use by UK and German courts currently are not able to distinguish them).
  • 89 These include the Internet, despite descriptions of it as enabling “a different kind of art object” in the form of “net art”: К Foster, “Net Art: The Works that Were Conceived and Born Online”, Financial Times 8 June 2020, https://www.ft.com/content/224d7ecc-9f37-llea-b65d-489c67b0d85d (last accessed 31 July 2020). On the nature of net art see further M Clarke, The Concise Oxford Dictionary of Art Terms (2nd edn 2010 OUP) (“Originating in the 1990s, [“net art”) describes art created on or for the Internet, utilizing sites like Mvspace (www.myspace.com) and YouTube (www.youtube.com) for the exhibition of such work.”). See also Foster (ibid.) (“Net art evades clear definition, but [Olia] Lialina’s work represents some of the genre’s most recognizable features in the way it probes the storytelling possibilities of browser software while also celebrating the Internet’s ephemerality. Glitches are a common conceit. For instance, the illusion of the swing’s movement in ‘Summer’ is made possible as the page is redirected to different images hosted on separate websites, creating a kind of flip-book effect which propels Lialina (herself the model) back and forth on our screen. The work relies on its hosts to maintain the websites; if these cease to function, the swing’s movement becomes increasingly broken. In a new book, curator and researcher Annet Dekker sees this participatory element as essential: ‘As such, [Summer] shows how art on the net is not only about technology but also just as much about human involvement.”).

underline the socially evolving nature of authorship as a creative human practice, and the need for legal conceptions of the authorial works protectable by copyright to reflect this. As long as those conceptions focus exclusively on the formal expressive properties of objects, and ignore the constitutive importance of a work’s origins, they will fall short in this respect. This is one aspect of existing European copyright jurisprudence that merits reconsideration by the CJEU.

  • [1] N. 28.
  • [2] Info. Soc. Dir. Recital (9) (“Any harmonization of copyright and related rights must take as a basis a high levelof protection, since such rights are crucial to intellectual creation") and Art. 2 (“Member States shall providefor the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by anymeans and in any form, in whole or in part (a) for authors, of their works;...”); n. 51.
  • [3] Term Dir. Arts 1 and 2.
  • [4] See, e.g., the German Copyright Law of 1965, Art. 2(2) (“only personal intellectual creations shall constituteworks within the meaning of this Law”).
  • [5] GWF Hegel, Hegel: Elements of the Philosophy of Right (1991 CUP; ed. AW Wood; transl. HB Nisbet) 73.
  • [6] See, e.g., | Raz, The Morality of Freedom (1988 OUP) 98, 155 (describing people as “part authors of theirown moral world" and “autonomy as (part) authorship of one’s life”); also J Finnis, Natural Law and Natural Rights (2nd edn 2011 OUP) 272 (arguing that individuals can only be selves, in the sense of having thedignity of being responsible agents, if they are allowed and assisted to create a subsisting identity acrosstheir life time); R Nozick, “Coercion" in S Morgenbesser, P Suppes and MT White (eds), Philosophy,Science, and Method (1969 Macmillan) 440-472 (treating coercion as undermining individuals’ authorshipof their action).
  • [7] GWF Hegel, Hegel: Elements of the Philosophy of Right (1991 CUP; ed. AW Wood; transl. HB Nisbet) 73.
  • [8] See, e.g., Case C-476/17 Pelham GmbH v. Ralf Hiitter ECLI:EU:C:2019:624 (29 July 2019) [31] (deciding thatthe unauthorized reproduction of a sound sample from a phonogram for use in modified form unrecognizableto the human ear in a new authorial work in exercise of the user’s right to freedom of the arts will not infringethe related rights of the phonogram producer under the InfoSoc Directive).
 
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