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An omnipresent element in the emergence of copyright-protected works is the inspiration by the creative work of previous authors and creative continuity with its results. Yet in which manner does copyright law deal with situations when the personal imprint of the author in the form of a work is not exclusively the imprint of the sole author? Problematic in fulfilling the goal of fostering creativity remains establishing the regulatory balance between protecting existing works and protecting the possibility of freely creating new works. The topic of this paper is an analysis of non-contractual flexibility which copyright law offers to authors building upon previous works, including an evaluation of the current regulation. At first, the terms inspiration and creative continuity are placed in a copyright law context and the areas which are key to enabling non-contractual flexibility are identified. The work is divided into two pivotal parts, which contain ten analytical sections. The first part deals with an analysis of the definition components of a copyright protected work, which represent the general limits of copyright protection. The aim of this part is to outline the differentiation between copyright protected and unprotected elements of creative output, including the differentiating criteria, by which to evaluate the options for non-contractual creative continuity for further authors. The analytical sections in the first part address the positive and negative definitions of a work, with a specific focus on the requirement of individuality. It concludes that, in particular, the results of non-creative activity fall outside copyright protection – and are thus free for creative continuity – even as parts of otherwise protected works. Creations or parts thereof that meet the requirements of a work of authorship are not free for integration. In general, the decisive factor is the fulfilment of the requirement of individuality, in the Czech understanding expressed by the term uniqueness. The work further analyses and evaluates the judicial development of the work concept through decisions of the CJEU. As a result, it is necessary to interpret the individuality requirement not according to its traditional understanding as statistical uniqueness, but according to the weaker criterion of originality, and thus to allow the protection also of less original creations. The generalised methodological divisions between protected and unprotected elements are subsequently considered, namely the idea/expression dichotomy principle. In general, a higher abstractness of the element under consideration indicates a lower probability of its copyright protection, while its higher concreteness generally indicates a higher probability of its protectability. However, these generalised divisions can only serve as supportive guidelines and not as a blanket rule. Within its analyses, the work draws heavily on comparisons with German doctrine and case law, namely due to its interconnectedness with Czech doctrine. At the end of the first part, the work contains a comparative section with the Dutch regulation, which, with its liberal requirements, represents a contrasting concept of a work of authorship to the Czech understanding. Through the Dutch development in the context of European jurisprudence, a conclusion is drawn about the practical impossibility of protecting non-traditional forms of works. The second part focuses on the regulation of exceptions and limitations of copyright protection, that is, limitations stricto sensu. The concept of exceptions as a closed list of specific situations, together with its material supplement with the three-step test, are subject to analysis and evaluation. The exceptions provide additional scope for creative continuity, which – unlike the general limits – is tied to specific purposes of use. The three-step test then further corrects (or narrows) this space through a material assessment of the circumstances of use. The following section specifically deals with select exceptions which best serve to create room for creative continuity. A powerful tool for follow-up authors is provided in the first place by the citation exception, whose additional room for integration of protected elements is defined by the scope, purpose and preservation of their meaning. Similarly important is the parody and caricature exception, which conditions integration primarily on a humorous or mocking purpose, but also provides greater scope for modification of the integrated element. The pending CJEU definition of the exception for pastiche purposes will now be key in determining the extent of additional room for creative continuity. It could be understood as allowing for proportionate non-humorous and non-critical integration of protected elements. The closed list concept is further compared to an open exception concept, including the until recently effective German doctrine of freie Benutzung. The concept of open-ended exceptions has the advantage of flexibility, allowing, for example, easy adaptation to technological developments. It can thus serve as inspiration for reforms of the European copyright system. The end of this work is dedicated to evaluating the current development course of flexibility on the field of European copyright law, along with reflections de lege ferenda and an outline of suitable topics for further research.
An omnipresent element in the emergence of copyright-protected works is the inspiration by the creative work of previous authors and creative continuity with its results. Yet in which manner does copyright law deal with situations when the personal imprint of the author in the form of a work is not exclusively the imprint of the sole author? Problematic in fulfilling the goal of fostering creativity remains establishing the regulatory balance between protecting existing works and protecting the possibility of freely creating new works. The topic of this paper is an analysis of non-contractual flexibility which copyright law offers to authors building upon previous works, including an evaluation of the current regulation. At first, the terms inspiration and creative continuity are placed in a copyright law context and the areas which are key to enabling non-contractual flexibility are identified. The work is divided into two pivotal parts, which contain ten analytical sections. The first part deals with an analysis of the definition components of a copyright protected work, which represent the general limits of copyright protection. The aim of this part is to outline the differentiation between copyright protected and unprotected elements of creative output, including the differentiating criteria, by which to evaluate the options for non-contractual creative continuity for further authors. The analytical sections in the first part address the positive and negative definitions of a work, with a specific focus on the requirement of individuality. It concludes that, in particular, the results of non-creative activity fall outside copyright protection – and are thus free for creative continuity – even as parts of otherwise protected works. Creations or parts thereof that meet the requirements of a work of authorship are not free for integration. In general, the decisive factor is the fulfilment of the requirement of individuality, in the Czech understanding expressed by the term uniqueness. The work further analyses and evaluates the judicial development of the work concept through decisions of the CJEU. As a result, it is necessary to interpret the individuality requirement not according to its traditional understanding as statistical uniqueness, but according to the weaker criterion of originality, and thus to allow the protection also of less original creations. The generalised methodological divisions between protected and unprotected elements are subsequently considered, namely the idea/expression dichotomy principle. In general, a higher abstractness of the element under consideration indicates a lower probability of its copyright protection, while its higher concreteness generally indicates a higher probability of its protectability. However, these generalised divisions can only serve as supportive guidelines and not as a blanket rule. Within its analyses, the work draws heavily on comparisons with German doctrine and case law, namely due to its interconnectedness with Czech doctrine. At the end of the first part, the work contains a comparative section with the Dutch regulation, which, with its liberal requirements, represents a contrasting concept of a work of authorship to the Czech understanding. Through the Dutch development in the context of European jurisprudence, a conclusion is drawn about the practical impossibility of protecting non-traditional forms of works. The second part focuses on the regulation of exceptions and limitations of copyright protection, that is, limitations stricto sensu. The concept of exceptions as a closed list of specific situations, together with its material supplement with the three-step test, are subject to analysis and evaluation. The exceptions provide additional scope for creative continuity, which – unlike the general limits – is tied to specific purposes of use. The three-step test then further corrects (or narrows) this space through a material assessment of the circumstances of use. The following section specifically deals with select exceptions which best serve to create room for creative continuity. A powerful tool for follow-up authors is provided in the first place by the citation exception, whose additional room for integration of protected elements is defined by the scope, purpose and preservation of their meaning. Similarly important is the parody and caricature exception, which conditions integration primarily on a humorous or mocking purpose, but also provides greater scope for modification of the integrated element. The pending CJEU definition of the exception for pastiche purposes will now be key in determining the extent of additional room for creative continuity. It could be understood as allowing for proportionate non-humorous and non-critical integration of protected elements. The closed list concept is further compared to an open exception concept, including the until recently effective German doctrine of freie Benutzung. The concept of open-ended exceptions has the advantage of flexibility, allowing, for example, easy adaptation to technological developments. It can thus serve as inspiration for reforms of the European copyright system. The end of this work is dedicated to evaluating the current development course of flexibility on the field of European copyright law, along with reflections de lege ferenda and an outline of suitable topics for further research.
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