Protected works of mind

Open and closed lists of categories of works

In the continental author’s right tradition there is no exhaustive list of protected works of mind, because the principle is clear : every kind of work can be protected regardless of
the merit or the aesthetic value of the work. According to this basic
principle, any kind of discrimination among the works of mind is
forbidden. Utilitarian works or works with primarily informative
character, such as works created by journalists, can be protected too. For example, a timetable, the menu of a
restaurant, even a pornographic film can be protected, if they are
original. The film of last Canne’s festival winner can be granted the
same protection as a software or a tv guide.

For the protection of works of journalists in  French copyright law see my article: Les
droits d’auteur des journalistes

On the contrary in the common law tradition there is a closed, exhaustive list of categories of protected works. If a work does not fit in the list, it is not protected. See for ex,ample, from the UK the  Creation Records Ltd. v News Group case  (1997).

For the concept of work in European copyright law see: T. Synodinou, “The foundations of the concept of work in European Copyright Law” in: Synodinou (ed.), “Codification of European Copyright, Challenges and perspectives, the Hague, Kluwer Law International, 2012, p. 93-113.

Originality in Greek and Cypriot copyright law

The  condition for granting the copyright protection is that the
work of mind has to be “original”. The definition of the originality of
a work of mind can be different from country to country and from
copyright system to copyright system. It can be appreciated in a
subjective or objective way or even by a combination of both subjective
and objective elements.

Another important element is that the concept
of originality is not defined by law but by the courts. In Greek law, a work of mind is original if it is statistically unique. That means that a work is protected if it presents
« statistic singularity » in the sense that under the same or similar
circumstances no one could probably create a similar work or that the
work presents singular particularity (Court of Appeals of Athens n° 8138
/2000).

In the law of Cyprus an objective standard of originality is followed. A work it is protected if it has not been copied from other works. This is the common law standard as it has been defined in the famous case University of London Press Ltd. ν. University Tutorial Press Ltd. [1916] 2 Ch. 601:
“The word “original” does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, … … The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author.”

The idea/expression dichotomy

The « idea/expression dichotomy » or « idea-expression divide » is a
basic principle of copyright. The « idea-expression dichotomy » is a
concept which explains the appropriate function of copyright laws, which
are generally designed to protect the fixed expression or manifestation
of an idea rather than the fundamental idea itself.

Example : According to this, the idea of creating a
work, e.g. writing a novel whose theme is the strong friendship between
two men and their dispute for a woman, it is not protected itself as far
as it remains a conception and it doesn’t take a specific form. Only the
special way the idea is expressed can be protected, provided of course
that is original. In our example, only the special composition and the
expression of the novel is protected and not the conception of the idea
of creating a novel with this theme. In other words, copyright may
subsist in the work as a whole, in the particular story or characters
involved, but generally not in the idea or genre of the story.

 

In the same way, the idea of creating a painting
which represents the port of Thessaloniki can not be appropriated by
copyright and it is not protected itself. It can be protected only the
specific expression of this idea which is incorporated in the painting
itself (the specific way the forms are designed, their colours, etc).
However, this distinction it is not easy to make concerning some new
kinds of works such as computer programs, electronic databases or
multimedia products.

 

The difficulties of applying the traditional doctrines to computer
programs stem from the nature of such programs. Computer programs are
hybrid functional works insofar as they employ words and symbols to
implement and control a process. Because programs possess both a
symbolic and functional nature, copyright may either protect too little
if the copyrightable expression is limited to the literal program code,
or too much if the copyrightable expression extends beyond the program
code .

For example, if you take a photo editing software

which has a new function, -it contains for example some new visual
effects- , in a court case it is very probable that the judge will
appreciate the originality of the program by focusing on these new
elements, the visual effects. Consequently, the idea of adding a new
visual effect which is different from the effects already provided by
previous computer programs is appropriated by copyright.

Relevant provisions in Greek law

Article 2 of the law 2121/1993 : Object of the right

1. The term «work» shall designate any original intellectual literary,
artistic or scientific creation, expressed in any form, notably written
or oral texts, musical compositions with or without words, theatrical
works accompanied or unaccompanied by music, choreografies and
pantomimes, audiovisual works, works of fine art, including drawings,
works of painting and sculpture, engravings and lithographs, works of
architecture and photographs, works of applied art, illustrations, maps
and three dimensional works relative to geography, topography,
architecture or science.