Julianna Yau’s blog

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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