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Introduction

Fixation is one of the key components for a work to be categorized as copyrightable. Fixation attaches the copyright to a physical object. Therefore, copyright in a work as we see it has to have a merger with a tangible object. The necessity of fixation arises because the incentives that the law creates are based on production of the subject matter and not just creativity imbibed in it. The policy which runs behind such an approach comes from the word 'expression' which has an underlying idea of experience of the expression by others. Even going by the rights that the law grants us, reproduction, performance, display, and distribution revolve around the same principle which also leads to the conclusion that the ambit of protection granted by copyright is over copying and not imitation.

In all common law countries fixation is crucial. The work has to be fixed in writing or in some other material form to qualify for a copyright. This is not to say that a work cannot be complete while merely in the mind of the author, e.g. a composer may play his composition or a poet recite his poetry without having written anything down beforehand. The work is an intellectual creation not a material thing. However, in common law jurisdictions it does not acquire protection until it is reduced to material form. In other words, fixation is a condition precedent to the existence of copyright. The work can exist in a complete state in the mind of the author, but he has to take a further step before acquiring a copyright, he has to fix it in material form. This is not so in most Civil law jurisdictions, partricularly in France and Germany. In these jurisdictions, a lecture given without a script or a musical performance of a work without a score is protected. In view of this position the Berne Convention does not take sides and provides that it is 'a matter for legislation in the countries of the Union' to require fixation 'in some material form'.

This gives each country the possibility to demand fixation either generally or for one or more categories of works. 'Writing' is not required in International law. The Berne Convention defines a literary work as: "every production in the literary — domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings ". Therefore, in all Berne Convention countries, fixation of any form other than by writing would also qualify the work for copyright. Apart from the obligation to honour the Convention, the opposite interpretation would lead to very odd results in the light of modern technology, e.g. a musical work not written down on paper but played and recorded would not be protected as a work and anyone who copied it from the recording would not be an infringer. As this situation arises regularly in recording studios with jazz and popular music, musical copyright would be seriously undermined. In countries not members of the Berne Convention writing could be required by the national law. The classic case was the United States, where the word 'writings" occur in the Constitution itself. This was perfectly logical in the 18th century but when other forms of fixation emerged such as films and records, the courts had to wrestle with the problem and eventually gave the term 'writings' of 'authors' a wide meaning in the light of modem technology declaring a recording a form of writings which the US Congress could protect in pursuant to the Copyright Clause of the Constitution.

A combined reading of 17 U.S.C. §102(a) and §101 lays down the requirement of fixation as encoding in a physical medium such that the expression can be further relayed and that the medium is sufficiently permanent or stable for more than just a transient duration. The law is flexible on the question of when to fixate- could be done beforehand or during the performance, and could even be done by a third party at the direction of the author.

Origin of Fixation in Copyright

The issue of fixation in copyright arose ever since the value of copyright in the subject matter was judged on the basis of its durability and the extent to which the same could be compromised without altering the true nature of the article. As the age of technology set foot on the soils of creativity, the advent of flexibility in the definition of fixation became a necessity. The change in character of the work which defied the tangibility aspect of copyright requirement required a complete revamping of the aspects of the work that would need to remain unchanged so that fixation requirement could be considered fulfilled.

The problem of tangibility was addressed slightly differently when the media changed and the term was likened to also include a medium won which information could be stored for later playback. Thus, data storage devices, computer programs, also fulfilled the criteria of fixation since the analogy of ‘experience of expression’ would be aptly fulfilled through the mass access that the work could have in digital form. 

Volatility and Fixation

This issue has proven to be a bitter pill for the courts to swallow. The principle issue has been whether a work that can be transformed could still fulfill the fixation criteria? The Third Circuit has been clear in its approach by allowing a wide ambit for fixation and that the concept was become somewhat moot with the development of technology and with changing perceptions of tangibility, the colloquial conception of fixation has to be altered slightly and the net has to have wider grids. The court laid down that as long as a substantial portion of the work possessed the same character as was imbibed in the original work, the fixation criterion would be considered discharged. This test has come to be widely accepted and copyright of expression in digital media is no longer hindered by fixation.

Another case which brought the issue of fixation back into the domain of discussion was Kelly v Chicago Park District. The work in question in the case had been a bed of wildflower and the specific issue had been whether the fixation criterion had been met. It was apparent that the wildflowers required maintenance and therefore permanence could not be achieved because of the gradual and steady growth of the flowers. The court declared the wildflowers would ‘at no point give rise to more than temporary, uncopyable images.’ The court was perplexed at the issue of deciding when the flowers would be considered fixed. Perpetual growth, dynamic change, and mortality cannot be ever fixed.

The court also determined that once cannot actually author a garden like one would create any other copyrightable work. The usage of the words ‘initiation’ and ‘maintenance’ indicate that even if the work has creativity, it lacks the vital virtue of being a creation. Also, since the garden finds its origin in nature and the extent of contribution of the gardener is extremely limited, human expression does not give rise to the work and hence the work would not be expressive. The court did agree to the limited copyright that Kelly would own over the design that he created which was static in nature and one can presume that fixation would, to that extent, also be acceptable.

This case would be somewhat counter intuitive to the principle laid down in Williams Electronics. The court in the earlier case presented permanence as a low-key requirement while with Kelley, one of the major issues had been the vitality of the wildflowers. So, even though the character of the work remained substantially the same, fixation was not accomplished.

This decision in Kelley has had its repercussions and was adopted in a potentially disastrous manner by the Central District of California Court when it gave its decision in the case of Kim Seng Co. v. J & A Importers. Adopting the principle similar to the one illustrated above on the issue of arrangement of food, the Court used terms such as ‘inherently changeable’ and declared that the underlying idea with food was that it was perishable in nature and there was, as the Court explained it, an attempt to reconcile the law with the Kelley judgment where there existed no reason for it to do so especially since it had conceded the fact that permanence of any medium is not possible. However, even with that, they offered non-stability of food as evidence of non-fulfillment of fixation requirement since permanence of a sufficient degree had not been achieved and any that had been would not remain so till a trial took place.

The backlash of this decision lay in the implications that could be drawn from this non-fulfillment of permanence as analogous to food even photographs, portraits, or sound recordings would not remain in existence for eternity. Thus, that extrapolation would not serve the purpose of determining whether the threshold of fixation has been crossed or not. There remains only one way that one can read the judgment and the requirement it places- evidentiary value.

The judgment emphasizes a lot on the medium to remain capable of maintaining a semblance of permanence which, to that extent, could be taken as a persuasive argument. The Court relies on Lichtman's article which states:

"the modern requirement excludes only those cases where there never was any physical evidence of the claimed expression; it does not exclude cases where there was evidence at some point in time, but that evidence was later lost or destroyed. Stated another way, federal law requires that fixations survive for a period of “more than transitory duration,” but it does not require that fixations survive, say, until the moment of litigation"

Oddly, Kim Seng seems to stand for exactly the opposite proposition yet indirectly cites to the article for support. The intention of the US Congress had been to make these requirements as flexible as possible such that with the advent of new technology and media, hindrances would not be created in exercise of copyright. While this has been adhered to with respect to the digital media, others have not fared so well. The problem that this leads to is that with rise of even more complex issues which would, in all probability, also involve fixation at the crux, wherein judgment calls would vary depending on the varied interpretation they are drawn from.

Issues in the Indian Law

The Indian law is not explicit in fixation and does not introduce it as a concept. The Indian Copyright Act, 1957 mentions the requirement for a work to be fixed in ‘writing or otherwise.' Addition of the term ‘or otherwise’ adds a very wide ambit to the scope of fixation. Is it to cover mere written or literary works under the definition of dramatic work or is the intention to provide protection to a dramatic performance, say stage performance of a play, whose expression, i.e. script, has been fixed in writing? A UK case of Norowzian v Arks Ltd. comes to our rescue. The court in this case interpreted the corresponding provision in the UK Copyright, Designs, and Patents Act, 1988 to imply that copyright would not be extending to stage performances which lack scripts. The exclusion of cinematograph film as a form of fixation appears unique to India. In the US and the UK, choreography can be fixed through any medium, including making a video. There appears to be no logically feasible reason as to why dramatic films cannot be recorded on video so as to make them copyrightable. Perhaps the legislative intent behind the phrasing of S.2(h) is to protect producers of cinematograph films from being challenged by the authors of the underlying dramatic works (such as scriptwriters) in the film. However, when read with the broad definition of “cinematograph film”, the protection of copyright over dramatic works appears to be put in serious jeopardy. After all, it is very difficult to “fix” a dance choreograph in any other medium but video.

The Indian Copyright Act also refers to fixation through the term ‘material form’ which includes storage in any medium by electronic means. Some authors have laid down that Copyright once fixed would continue even if the fixation itself was to be destroyed which is in stark contrast to the position taken by the US Courts in Kelley and Kim Seng Co.

Another major development with regard to fixation came in the form of the 2012 amendment in the Act which has added §38A which provides for performer’s right as an exclusive right to do or authorize the doing of any of the acts in respect of the performance without prejudice to the rights conferred on authors. The proviso to the section enables performers to be entitled for royalties in case their performances are subjected to commercial use. A proviso has been added to the definition of performer under §2(qq) which provides that in a cinematographic film, a person whose performance is casual or incidental in nature and in the normal course of practice of the industry is not acknowledged anywhere including the credit of the film, shall not be treated as a performer. This removes the category of 'extras' in a film. This is a welcome development as earlier the performers were not entitled to royalties because they only had a negative right to prohibit ‘fixation’ of their live performances. The negative right has now been converted to the positive rights.

Another confounding issue of fixation is that of Musical Works. Musical works were not defined either under the Imperial Copyright Act of 1911 or in UK Copyright Act 1956. Interestingly while introducing Copyright Act 1957 in India, the requirement of fixation in musical work was necessary as per the definition but through the 1994 amendment the requirement was taken away and the reason given does not commensurate with practical application. Therefore, through the 1994 Copyright amendment , the definition of Musical works has given more scope for legal interpretation and because of grey patches of not having fixation principle in Musical work (embodied in sound recording derivative work) – multiple arguments have been compounded for resolving infringement issues , ownership boundaries , positioning of authorship , distinction of works , royalty appropriations , protection of broadcasting reproduction right, live recording transmissions etc. Hence, with this gap in the “Musical work” definition(s) given in (1957 & 1994) the ownership and authorship issue will be in serious jeopardy and the whole topic seems likely to become the subject matter of reference for Court’s clarification in due course.