Julianna Yau’s blog

Throughout the lecture, I was hurriedly making notes as I tried to absorb and process the information being thrown at me. Some of the questions I jotted down were:

• Is there really more benefit to society if the work is fixed? This becomes not only a matter of retaining valuable works (as not to keep everything, thereby cluttering the repository of works), but whether all works are more valuable when fixed.
• There was mention of the fact that unrecorded conversations are not protected by copyright, but conversations which are recorded become protected by copyright. What impact does this have to companies which record the conversations of their customer service staff while on the phone? Although they hold the rights to the recording, the parties being recorded own the actual conversation. Does their use of the recordings for training purposes fall under the educational clause of fair usage? What if they use the conversation in a manner other from training?
• If a musician authorizes recordings of his/her concerts to attendees, what happens to the royalties which may exist from the resale of those recordings? Would we assume that the authorization was made royalty-free, or would that fall into a fee schedule somewhere?
• What happens to copyright on an unfinished, fixed work? There are many known instances of unfinished artistic and literary works (and I’m sure the same applies to dramatic and musical works) which are published in one form or another. Although these publications usually come with discussions of whether the creator would have wanted an unfinished work published (and the societal value of such publication), I’m not aware of any discussions regarding whether copyright can exist for unfinished work. If I start a sculpture but never finish it, would someone be able to duplicate the unfinished work without violating copyright law? What happens if I later finish that sculpture, thereby making it no longer the same as the “sculpture” which was duplicated? Would the duplications only violate copyright if I had somehow fixed the original, unfinished work (e.g. photographically)? Is the work-in-progress considered to be inherently fixed? Surely duplicating a work at any stage is in violation of copyright because it does not clear the originality clause.

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In the lecture, Professor Mazeh had pointed out that under UK law, a musical, dramatic or literary work automatically becomes copyrighted if it is fixed by anyone. One of the participants asked what happens if the author does not want their work to fall under the jurisdiction of copyright law. Although Professor Mazeh replied that people are free to waive or hold their copyright, I wonder how someone would know to waive their copyright if they didn’t know that it was protected by copyright in the first place.

During the discussion, several people challenged the last enhancement. One of the challenges I found to have most impact on artists was whether this accessibility would negatively impact the value of the work. I thought instantly of Matthew Barney, whose work The Cremaster Cycle is available to the public only through cinemas or to collectors who have half a million dollars for one of the limited edition DVDs of one of the five portions of the cycle (although bootleg copies exist, and occasionally make an appearance online, they have been quickly shut down; also, a portion of Cremaster 3 is available on DVD). To these challenges, Professor Mazeh responded that he didn’t care how the work was accessible—for example, the work could be publicly accessible in the form of a book for sale. I (and, from the questions being posed, others) wanted more discussion of the meaning of “publicly accessible”. The issue of accessibility is a topic unto itself, and I personally don’t think that any works would be protected by copyright law if public accessibility were a requirement because there are too many barriers to total accessibility.

During the discussion, many other questions were brought to light by the proposed justifications, proposed enhancements and the topic overall:

• because there is no requirement that artistic works be fixed, it seems to imply that artistic works are inherently fixed; however, there were many examples provided by the participants of artistic works which are not inherently fixed (e.g. an artistic display of light)
• the concept of an unfixed expression of an idea versus the idea itself
• authorship versus fixation (the author is the entity who created the work; the “fixer” is the entity which fixed the created work; the author and the “fixer” can be the same entity, but not necessarily)
• fair use as a user right or a feature of copyright
• what happens to works which are fixed in human/cultural memory (e.g. in a culture where its history is retained verbally rather than literally)
• what happens to works which are created and purchased but never seen by the public (in relation to the proposed requirement of public accessibility)

There was also the question of whether Professor Mazeh was actually proposing, through the enhancements, a requirement of registration. In the current Canadian copyright system, there is no requirement for registration but it is recommended by the Copyright Board of Canada. However, the registration process does not require (and actually prohibits) a copy of the work to be included in the registration. In a workshop on copyright I attended earlier this year, hosted by CARFAC Ontario, all of the artists in the workshop were surprised and concerned by the fact that the registration of copyright is not only relatively expensive, but doesn’t require any information about the work which can be used to identify it (except, perhaps, the title).

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Yesterday, Professor Yoav Mazeh hosted a workshop which asked “should works of copyright be fixed in tangible form?“. His lecture was followed by the most lively discussions I’ve experienced at the workshops I have attended so far. Professor Mazeh began with asking why, if copyright is the protection of intellectual property, the work must be fixed. He noted that the 1911 UK Copyright Act (Ss 35(1)) had a definition of dramatic work which included the requirement of fixation, which was expanded in the UK CDPA in 1988 (Ss 3(5)) to literary and musical work also (but did not include artistic works). Canada’s current Copyright Act (S 3(2)) is similar to the 1911 UK Copyright Act, having the fixation requirement explicitly applying only to dramatic works.

He proposed the following as the justifications for the fixation requirement:
-evidentiary justification
-3rd parties’ certainty (so 3rd parties are able to determine whether they have infringed upon someone’s copyright)
-the enrichment of society
-[to address the challenge of the] author’s subjective perspective of the work

Interestingly, he noted that there is only the requirement that works have been fixed, and there is no known requirement that the works must be fixed at the time of litigation. Copyright laws also have different requirements for who fixed the work, and whether permission was granted to the fixer by the author. UK law (Ss 3(3)) indicates that it is immaterial whether the work is recorded by or with the permission of the author. US law (S 101) indicates that copyright protection only exists if the work was fixed by the author or with the author’s permission. Canadian law is silent to the matter, and there was actually quite a bit of discussion of whether it follows UK or US law in that respect (conclusion: it is most likely similar to UK law, but this matter was unresolved within the time-frame of the workshop).

These different requirements pose challenges because:
-if the author is unaware that the fixation was made (e.g. by a fan at a concert), and is possibly inaccessible to the author and to others, his proposed justifications are negated; and
-if the author is the only one who has fixed the work, the work could be inaccessible to others and most of his proposed justification are negated.

Some “grey area” art which enters into the fixation issue are ice/sand sculptures and face painting, which are temporary artwork which exists long enough for them to be copied (or fixed in another form). Although these works are fixed at some point in time, they are not fixed with any permanence…and therefore negates most of his proposed justifications to the fixation requirement.

Professor Mazeh also noted the problem that although there is a fixation requirement, there is no requirement for there to be public access to the work, negating the justifications he had proposed.

To these problems, he proposed the following enhancements to the fixation requirement:
-fixation [to be done] by [the] author
-fixation [must be] retained
-fixation [must be stored in a] publicly accessible depository

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Yesterday, I got an email from One Laptop Per Child, thanking me for participating in the “Give One Get One” program. The email was curiously without a confirmation that the laptop had been shipped, but did say:

As a “Give One Get One” donor, you will receive one of the first XO laptops to be distributed in North America. Laptops will be delivered on a first come, first served basis. While early purchasers have the best chance of receiving their XO laptops in time for the holidays, quantities are limited and we cannot guarantee timing. We will provide you with regular email updates.

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