This essay requires a description of what copyright does protect in the field of art.  This requires an analysis of the works defined in s 4, but also of the EU law on this subject, which has now replaced that detailed structure of defined works with the broad test in the Levola Hengelo "identifiable with sufficient precision and objectivity" test.  That represents some progress from the previous position, where all the ECJ had indicated was that a work must represent originality.  But the precise boundaries of what can and cannot be a work remain unclear save in the case of smells and tastes.  The underlying EU law basis for the various Directives (principally the Information Society Directive but also the Term Directive) having the effect of harmonising the law in relation to protectable works needs explaining as it arises as a result of the interpretation of those legal acts, rather than from their express wording, following the ECJ's teleological approach to interpretation.  The approach of the UK courts in following the ECJ in this regard, as illustrated in cases such as SAS should also be mentioned.

To appreciate the relevance of the question, the EU approach can be contrasted with the previous UK law position, where the Act only protects works falling within the definitions in s 4(1). ‘Graphic works’ are defined with references to examples, but there is no apparent protection for works created in three dimensions apart from things that fall within the statutory definitions of ‘sculptures’, ‘works of artistic craftsmanship’, or ‘engravings’. Reference to the cases on these definitions is needed, particularly the Lucasfilm case in relation to sculptures. Lucasfilm represented a move forward in looking for artistic intent behind a creation, rather than (as previously) focussing on how a work had been created.  But even given that, UK law still clearly placed more limitations on what could amount to a work, particularly in the case of 3D creations.

Pre-Infopaq academic writing on the topic largely criticized this reductionist approach to art; for example, pointing out that the creativity in conceptual art, performance art, and art ‘installations’ may consist not in the individual parts (which may include video, machinery, computer equipment, and so on) but in the assembly as a whole when viewed in context.  The UK requirement that a work must be categorised as falling within one of the definitions in s. 4 limited the scope for protecting such things as a whole.

The writing referenced in the text () highlights the consequences generally of the change in approach signalled by the ECJ case-law, although this was before the Levola Hengelo decision.  In particular Griffiths' notion of "dematerialisation" - that is, that the whole concept of the form in which a work is expressed is no longer relevant to protection - is particularly relevant here.  The writers note the problems the new law will face when it has to define the scope of protectable things in difficult cases, and it can be seen that Levola Hengelo represents only the start of a process of nailing this down..

So the types of artistic work mentioned above will continue to be problematical, for example conceptual art that consists essentially of borrowed material, or a single idea, may struggle to meet the Levola Hengelo test, or the test for originality.  But of course, underlying some art is the notion of challenging the idea of what art is, so this is perhaps to be expected, and unavoidable.