1. THE CONFUSING AGE OF COPYRIGHT

Copyright is living through confusing years. This confusion is due to the erosion of a systematic approach to the boundaries of this area and, consequently, to the interests that copyright should protect.

When investigating the relationship between copyright and fundamental rights, the first questions an intellectual property scholar should ask are: what does copyright protect? What are the interests that copyright effectively safeguards? Why should copyright be included in the list of fundamental rights?

Instinctively, it could be argued that copyright should be focused on the development of culture and art. In all the international conventions, and in the recitals of the European Union (EU) directives devoted to copyright, the protection of creativity, art and culture is a common reference, but is it a declamatory or an effective reference? Is it a tinsel to embellish the legislative text or a form of respect towards legal traditions?

The rationale of copyright protection is to be sought at a deeper level, also taking into account the necessity of determining economic incentives for the authors, and for the cultural industry as a whole. This chapter aims to briefly analyse how the economic and moral aspects of copyright affect the attempt to investigate whether copyright is a fundamental right, how systematically copyright is placed among other fundamental rights, and the balance, in cases of conflict, between copyright and other fundamental rights.

The uncertainty of this systematic analysis of copyright and, especially, of its purposes, can be exampled by the examination of the subject matter (i.e. the protected works), and by the list of the categories of works which are included within copyright protection. This aspect differs between different jurisdictions: in some cases, the applicable regulations provide a closed list of works (for example, UK, India, Australia), while in others this list is open, as long as some preconditions are fulfilled (for example, France, Germany, Italy). Apart from this distinction, which reflects the frameworks of the different legal traditions, we are facing the enlargement of copyright boundaries (as well as those in all other sectors of intellectual property). Those boundaries are progressively expanding to include works which have not traditionally been included within the categories of literary, dramatic, musical and artistic works, or, in general, among cultural and artistic works.