The reason why film producers in Europe ended up having neighbouring rights is a mystery. They were not included in the Rome Convention, but they appeared out of all woods in the 1993 European Directive on the Right to Rent – apparently without lobbying from the film producers themselves. At the bottom of page 4, they probably owe this right to the development of the officials and scholars who were involved in the development of the directive. The “race images” (non-original films) already enjoyed similar legal protection in Germany in the years leading up to the directive. Footnote 5 Like phonographic law, it is a right based on the idea that investments in phonography deserve the protection of recorded content. Any new creative work technology has given rise to a debate about the protection that these works should enjoy, as has been the case recently with copyright and database rights. Similar debates have taken place on the protection of the copyright of the photographs. The Berne Convention allows for a shorter period of protection than for other works (twenty-five years from creation instead of fifty years post mortem auctoris, art. 7.4), and many countries apply a different protection period for photographs than for other works.
Another approach, adopted in particular by Germany and Italy, is to offer full copyright protection to photographs that are clearly “artistic works” and to protect all photographs, whatever their creative value, with a shorter sui generis right. This focuses the debate on photographs that still have value at the end of sui generis protection (no one would bother to protect worthless photos) which are probably most of the original photos. However, it also means that photographs are subject to a higher originality control than other works of art, as copyright is reserved for those who have found the courts to be particularly deserving, which is contrary to the spirit (if not the letter) of the Berne Convention. Sui generis guarantees are set out in Articles 72, UrhG for Germany (50 years) and articles 87-92, Legge 22 aprile 1941 n. 633 for Italy (20 years). The difference in treatment between photographs and other artistic works has been eliminated by the European Union Directive 93/98/EEC (Article 6), which states that the only applicable criterion for copyright protection is that the photo is “original in the sense that it is the author`s own intellectual creation”, a criterion lower than that of other copyrighted works.