From works to data: the final destination of copyright?
Creators: name: Caso, Roberto
name: Dore, Giulia
Publisher: name: Zenodo
Year: 2019
Subjects: Intellectual Property
Copyright Law
Work of Authorship
Dichotomy idea/expression
Data

description: Abstract

The origins of copyright are well established, so it seems suitably clear what its original scopes and justifications were. Copyright has traditionally embraced the principle of protecting original works of authorship, posing a visible emphasis on the author (as human being) and the (intellectual) work, with different and controversial validation theories that justified exclusivity to reward the labour or the personality of the author reflected in the work, or respond to a wider need to foster progress of knowledge and cultural pluralism.

Likewise, there is an abundant literature questioning if copyright is moving from the fundamental notions and categories that have traditionally featured it, starting with the contentious notions of authorship or of the idea/expression dichotomy, do not seem to be always applicable to what copyright has become. Such difficulty is well illustrated for instance by collective works (in particular, compilations of data) and works created through Artificial Intelligence (AI), where both examples offer the opportunity to discuss the meaning and the scope of authorship, in consideration of its indiscriminate expansion. To this extent, scholars questioned whether copyright has turned into a mere tool to protect investments or is still an instrument to encourage progress of knowledge, safeguard freedom of expression and secure public dialogue in a democratic society.

Over the time, the evolution of copyright has resulted in three main dimensions, which may be metaphorically described as the “three worlds” of copyright. All of them delimited by a third-layered regulation that mixes formal legal rules, social norms and technology that often struggle to coexist.

First, a timeworn realm where the original public dialogue that moved progress of knowledge hardly survives despite the resiliency of the right of reproduction, also thanks to permissive licensing and piracy, and in theory it has not yet extended to raw data – like facts and ideas – that do not attract copyright protection for being not original.

Second, a world where data (and information) become central, moving the attention from the author and the work, and the right of reproduction is exasperated, particularly by means of stronger neighbouring rights, fierce technological protection measures (TPMs) and the controversial sui generis database right (SGDR), but most of all progressively outshined by the right to appropriate and process the data.

Third, a more recent universe that to some extent recalls the origins of copyright as privilege, where the right to appropriate data becomes the right to control the machines (e.g. servers) and their AI that in automated modes manage data and information, where openness becomes an instrument to make profit over such de facto control over data.

In this lively framework, the very first world risks to vanish, overpowered by the other two realms, unless technology, social norms and norms of different legal disciplines, i.e. intellectual property, privacy and data protection, contracts, competition law, public sector information strategically intervene to counterbalance their undermining power. The challenge is, to use the esoteric words of the Court of Justice