Significance of Fixation in Copyright Law

Abstract

It is one established principle of copyright law that copyright protection cannot be provided to a work until and unless the work is expressed in some tangible form. This requirement of expressing the idea is known as the requirement of fixation in copyright. This essentially means that the work must be embodied in a copy which allows it to be seen or copied by others. The issue of whether a work must be fixed in a tangible form in order to be protected is not dealt with in a uniform way. Copyright law draws a distinction between the work (an intangible intellectual creation in which copyright subsists) and the tangible object in which the work is fixed. “Copies” are defined as material objects, other than phonorecords, in which a work is fixed, and “phonorecords” are defined as material objects in which sounds are fixed. Whether a work needs to be fixed in order to benefit from protection has important practical consequences, especially with regard to works of improvisation such as music, speeches or choreographies. If fixation is required, those works would not be protected until they are either recorded or transcribed. By contrast, in a country without fixation requirements, copyright protection takes effect from the very moment the work is created, i.e. when the improvised music or dance is performed or the speech is given. In this paper the author will make an attempt to discover the importance of fixation for copyright protection with the help of relevant case laws. Also making a critical analysis on the issue whether fixation is at all required for copyright protection or not.