ABSTRACT
Introduction
The aim of Chapter 1 is to frame the historical evolution of the model of copyright subject matter as an artefact – in other words, as a closed, isolated object that results from creative efforts, has a specific structure (i.e., construction) and manifests itself to the recipient in a specific form (the fixation requirement). In contrast to the historical origins, when society managed to protect intellectual efforts without an objectified subject of copyright, the contemporary concepts of a work are based on an artefactual strategy (Barron, 2002; Pila, 2008). On the one hand, the current model is the result of a normative evolution justified by technological developments and the significant intensification of competition worldwide; on the other, it has remained unchanged, unchallenged, and dominant since the 18th and 19th centuries (Woodmansee, 1984; Goldstein, 2003; Biagoli et al., 2011; Drassinower, 2015).
We discuss the historical evolution of a work in four main music-inspired parts: the preludium, showing the pre-normative struggles with the protection of creativity (with the main leading question: is there even a work involved?). The aim of the first part is to present some early legal concepts and philosophies towards the question of the protection of creativity and to pose the question of whether the notion of a work was (is) actually a necessary component of a legal system. We critically investigate the first events that are considered to constitute the emergence of the notion of copyright subject matter, noting the circumstances which led to such a revolution. The second part refers to musical suites and presents an example of booksellers’ battles over an intangible good. The common denominator for this phase is a jurisprudential struggle with an object enjoying already existing normative protection. Our aim at this point is to study the main three identification strategies developed in a number of European countries (Britain, France, Poland, Prussia), juxtaposing them with our contemporary questions regarding copyright’s subject matter. Due to the complexity of this section, we briefly interrupt our historical investigation with a short Intermezzo in part three that summarises the research so far. Last, but not least, the final section is inspired by modern operas and briefly presents the contemporary struggle with the notion of a work, which is also a leading motif for our criticism: the artifactuality of copyright’s subject matter.
