3 - Subsistence of copyright  pp. 59-129

Subsistence of copyright

By Pascal Kamina

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This chapter addresses two fundamental aspects of copyright protection for audiovisual works: the determination of the subject-matter for protection and the duration of copyright protection. As pointed out, European countries adopted different approaches in the definition of the subject-matter of protection for audiovisual works. Countries of the authors' rights tradition protect audiovisual works as original works of expression, distinct from the recordings or other manifestations thereof. In contrast to this traditional view, under current UK and Irish copyright law the main subject-matter for film protection is the visual recording, irrespective of any condition of originality. In authors' rights jurisdictions, this recording attracts protection under a specific neighbouring right, distinct from the copyright in the recorded audiovisual work. As a result, in these countries both the audiovisual work and its recording are protected, but under two separate intellectual property rights, a droit d'auteur on the one hand, and a neighbouring right on the other. In addition, different solutions were adopted concerning the protection of broadcasts and cable programmes.

Until recently important disparities existed also with regard to the duration of copyright protection. At the time of the adoption of the Term Directive, some continental countries applied the general copyright term to audiovisual works. This term was fifty years p.m.a., except in Germany and Spain, where it was respectively seventy and sixty years p.m.a. Moreover, the list of co-authors to be taken into consideration for this calculation varied.