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Film restoration requires great skill and exper- tise to accomplish. It is labour-intensive and needs substantial investment. It also requires significant aesthetic judgements to be made. These are all criteria which have been used to justify copyright protection of a work.
However, as a matter of principle, copyright legislation has been drafted to remove the possibility that a reproduction of a work could receive protection in its own right. Skilfully produced restorations, aiming at complete fidelity to a supposed "original", thus pose interesting questions as to what (in copyright terms) we should consider a cop y and what we should regard as an original work.
These questions are particularly relevant now because of the step change that has taken place between photochemical and digital restoration. The flexibility and power of digital tools, and the number of options restorers now have, is likely to place modern restoration in a different copyright context.1
COPYRIGHT AND AUTHOR'S RIGHT
That context, of course, varies a little from country to country. National copyright systems are grouped into two unruly families: those developed in common law legal systems derived from English law, and those springing from the civil law systems prevalent in the continental European nations. It is of- ten said that common law systems deal with copyright as an economic phenomenon, while civil law systems look at works as extensions of the author's personality and protect them on that basis.2
As space is limited, this discussion will focus on the copyright approaches of France, the US, and the UK as representative of, respectively, the civil law approach, and two distinct strains of the common law approach.
THE FILM RECORDING AND THE CINEMATIC WORK
There are two ways in which copyright legislation tends to conceptualise film subject matter. There is a film in the sense of an (audio-) visual3 recording - simply, the images and sounds fixed in any given copy. Then, there is a film in the sense of a cinematic work in the abstract - in essence, the sum total of creative decisions about the lighting, film stock and film grading, camera movement, orchestration of scenes, and so on. The terms "film recording" and "cinematic work" are used here to distinguish between the two.
The latter conforms closest...