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Copyright - Open or Closed List of Protected Subject Matter - Coggle…

- - - - This leaves open the possibility of different approaches to subject matter in the national laws of Union members.
        
        One of the major differences is the ‘open list’ versus ‘closed list’ approach, exemplified by France and the UK.
- - - - Some definitions are exhaustive in nature, such as that for ‘artistic work’,(CDPA, s. 4.) whereas others are inclusive, such as that for ‘dramatic work’ (CDPA, s. 3).
        
        In the case of literary, dramatic, artistic, and musical works once the subject matter hurdle is surmounted it is still necessary to establish that the works are original
- - - - In other words, the court implicitly suggested that where there was an intellectual creation it was unnecessary further to categorize it as a particular type of work.
    - - The court accepted that, in principle, this was possible if sporting events were original ‘in the sense that it is its author’s own intellectual creation’ but they rejected the claim that sporting events could be intellectual creations since the rules of football left ‘no room for creative freedom’.62
    - - The court ruled ‘the subject matter concerned must be original in the sense that it is the author’s own intellectual creation’64 but that this was a necessary but not sufficient requirement for a copyright ‘work’.
        
        The court went on to indicate that ‘the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form’.65
        
        The reasons for this ‘identifiability’ criterion were the need for those dealing with copyright works to ‘be able to identify, clearly and precisely, what is the subject matter of protection’ and ‘the need to ensure that there is no element of subjectivity – given that it is detrimental to legal certainty’.66
        
        On the facts, however, the court found that the taste of a food product lacked precision and objectivity:
        
        [42] The taste of a food product cannot, however, be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.
        
        [43] Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.
        
        That is because, first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity––given that it is detrimental to legal certainty––in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner.
        
        (…) for there to be a “work” (…) the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.
- - - - This was graphically illustrated in the case of Creation Records.3
        
        In preparation in the production of the cover for Oasis’s album Be Here Now Noel Gallagher arranged for a series of objects (a Rolls Royce, a motor bike, a clock) to be placed around a swimming pool. This collection of ‘artistically’ distributed objects was then photographed by the claimant and the photograph used as the album cover.
        
        However, a photographer from the defendant newspaper was present and also took a photograph of the scene.
        
        When the newspaper published this photograph and offered to sell posters of the scene, the record company sought an interim injunction alleging infringement of its copyright.
        
        The claim based on copyright failed because the scene did not fall within the meaning of any of the (then) nine (now eight) categories of protected work; in particular, it was neither an artistic work nor a dramatic work.4
        
        Thus UK endorses the idea of a closed list. if something does not fall within the 8 categories it is not protected.
        
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- - - - The directives say very little about what constitutes a work
        
        However, the Court has taken the view that harmonization of the concept of a work is implicit within the directives.
        
        Drawing on the terms used to define when works are ‘original’ in three directives, the Court has suggested that ‘literary and artistic works’ should be protected by member states where they constitute ‘intellectual creations’.
        
        Thus the Court has said that a ‘graphic user interface’ should be protected, but that a football match would not be.6
        
        At the same time, the Court seems to have recognized the existence of works that do not fall within any conventional category.
        
        In Nintendo v. PC Box,7 before addressing the questions that had been referred to it by the national court, the Court of Justice went out of its way to confirm that a video game, which contained a computer program, as well as visual and sonic material, was a work. It explained:
        
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