A. Introduction

What is the impact of copyright (and neighbouring rights) on art — on  the conditions for artistic production as well as on other art-related practices in modern societies like trading, conserving, exhibiting, performing, reproducing and distributing works of art or reproductions thereof in various media? And what is the particular relevance of art (and of aesthetic concepts, or theories of art) for copyright? Why should the dogmatics of copyright be concerned with aesthetics at all, and what function do aesthetic concepts fulfil in the conceptual structure of copyright and in the context of its legitimization?

These questions, although apparently interrelated, differ in direction: The latter focus on the dogmatics of copyright and try to elucidate the normative import of art and aesthetics as well as the implicit aesthetic theory of the law (if it can be shown that there is, indeed – and inevitably– an aesthetic implied in the legal regulations concerning the production and circulation of goods of the mind); the first one aims at a pragmatic analysis of copyright law that should contribute to deepening our understanding of copyright through the examination of the effects it has on the practices governed by it.

A pragmatic analysis of copyright law, which must also take into consideration the economic di­mension of the practices governed by this law, will be relevant not only to lawmakers and legal scholars, but in principle to all those interested in the social, political and aesthetic consequences of legal regulations in this increasingly important dimension of modern societies. In particular, an inves­tigation of the impact of copyright law on art will prove rewarding to scholars interested in eluci­dating the structure and the functions of the ‘modern system of the arts', the meaning of the modern concepts of (fine) ‘art' and ‘aesthetic' in general, as well as of a number of more specific concepts, like the notions of...