ABSTRACT
Introduction
The final chapter presents in-depth legal considerations concerning the identification of the subject matter of copyright, incorporating partial conclusions from studies on aesthetics, neuroscience, and cognitive science into the theory and dogma of copyright law. As a general summary of all our considerations it is aimed at providing a theoretical and systematic reconstruction intended to propose policy recommendations for future legislation, as well as new interpretative patterns and doctrines for courts. We finish our journey by finally resolving the key-questions on normative strategies that are applied in order to identify the subject matter of copyright: the dualistic approach, the extrinsic/intrinsic test and an originality requirement understood through the prism of structural (artefactualised) interpretation. The aim of this chapter is a final comment on these strategies, gradually leading to a conclusion involving a more contextualised definition of the work in copyright law.
The significance of memories and a personal experience of events was noted by Proust, whose work was the inspiration for the title of this chapter. Henceforth, we start with the first section (The Scandinavian way) that presents an interesting perspective on defying the subject matter of copyright in legal realism. Illustrated on the example of Alf Ross’s writings, we provide a brief summary and comment on the ontology of the subject matter of copyright, the subjectivity of its descriptive presentation and the role of perception. Then, we move on to consider a number of normative strategies for identifying the subject matter of copyright. Not all of these can be seen as a one-size-fits-all method for all of the perceived problems related to the identity of a work. In what follows, we only present their main approaches, distinguished on the basis of an analysis of US, British Commonwealth, and Continental European case law. We will start with the simplest one, which is based on the assumption that a work is identifiable based on a dichotomous division between idea and form of expression (the second section, The Dichotomy). Then we move on to the UK/US strategy on a substantial similarity that might also be applied in order to distinguish a protected work (The External and the Internal). The subsequent section (The Prisoner) consists of our main considerations regarding the premises of fixation and originality and their structural interpretation by courts. 142Before moving to the final section, we briefly present the interesting yet utopian idea of the abandonment of a notion of a work (The Fugitive), one already indicated by several scholars in the literature. The last section, Originality Regained, constitutes the summary of the entire project and my personal input into the discourse on the notion of a work.
