L'autore e l'opera. Ripensare le categorie fondanti del diritto d'autore alla luce della realtà della pratica musicale.

The thesis takes into exam the juridical categories of “author” and the “work of authorship”, with relation to the reality of musical practices. The analysis starts with a general part, where the above mentioned categories are taken into consideration from a juridical point of view, highlighting the fact that the national and international legislations on author's right and copyright traditionally conceive the work of authorship as a stable and immutable object, and that they require – for the purpose of protection – one ore more specific persons to be identifiable as authors, and consequently to be entitled to own moral and economic rights that derive from the creation of the work. Firstly, the thesis take into account the different theories of scholars on authorship and on the ownership of economic rights in works, with specific regard to works created with the collaboration of different authors and derivative works. Then, the thesis analyzes the position of the author of a derivative work with relation to the original author. Successively, the analysis moves to the relation between performance and creation, and the difficulties in the juridical qualification of the performance (as mere performance or as derivative work) when the performer extemporaneously modifies the original work. A second part of the thesis takes into exam some specific musical expressions, either those based on oral transmission or those based on a written score (orally transmitted music, jazz, blues, popular music, reggae, rap and the practice of sampling). Contemporaneously, the juridical implications related to the dynamics of the above mentioned musical expressions will be specifically examined, also in a comparative perspective. This will show how the concepts of “authorship” and “work” are conceived in the artistic and social contexts where those expressions are practiced, and will highlight the difficulties emerging from the application of the legislation on author's right and copyright to those musical expressions. The analysis demonstrates, in particular, that within several musical expressions the work is conceived as a model open to variation, and consequently the performance plays not a mere performative role, but it also assumes a creative function. Moreover, it will show that the distinction made by the law between creation and performance may look arbitrary and not consistent with the reality of musical practices. In the conclusive part, the thesis analyses some proposals of scholars about the reformation of the legislations on author's right and copyright, and also takes into exam the different theories about the interests protected by copyright law and author's right. Some other hypothesis of modification of the current legislations are considered, in order to try to reduce the highlighted “discontinuities” between the law and the musical practices, considering for each of them the possible positive and negative outcomes.