Gazing into an abyss: defining the non-protected abstract matters in EU copyright law

Matěj Myška

Zitiervorschlag: Matěj Myška, Gazing into an abyss: defining the non-protected abstract matters in EU copyright law, in: Jusletter IT 24. April 2024

Thanks to the case law of the Court of Justice of the European Union, the requirement of “sufficient precision and objectivity” became a further cornerstone of the, as of now harmonized, notion of work (“Werkbegriff”). This requirement shall provide for legal certainty of third parties as regards to the extent of protected subject matter. The borderline is formed, inter alia, by the direct opposite, i.e., abstract matters. The main aim of this contribution is to concretely define the abstract (sic!) in copyright law. To achieve this aim the contribution firstly shortly explains the requirement of “sufficient precision and objectivity” as introduced by CJEU. In this step the “definitions of non-protected subject matter” are to be observed and synthetised and thus a picture of “the void” in copyright protection should be formed. As the “abstractness” is mostly encountered in the area of computer programs, this subject matter should be regarded the primary focus of the study. Moreover, the patent law deals in extensive matter what is not to be protected on the basis of being abstract, i.e., being a “non-invention”. To find out these boundaries, EPO conclusions in the area of computer-implemented inventions are utilised. In the end, the contribution shall find common regulatory features in these two areas of intellectual property law and discuss what conclusions could be theoretically applicable to the delimitation of the authorial work and to contribute to the ongoing debate on the scope of the protected subject matter in the EU copyright law.