Fixation and the Form of Expression
Chapter Thirty-Two
Syllabus topic 1.4, "Nature of Copyrights"
Pages 139 to 142 of 719
In one line
Indian law does not require a work to be written down before it is protected, except where the Act itself says so, and the places where it says so are worth knowing exactly.
In the wording a student can write in an exam: the Copyright Act, 1957 contains no general requirement of fixation, and Berne article 2(2) leaves the question to national legislation; but the definitions of a musical work and of a cinematograph film, and the nature of a sound recording, each import a requirement of material form for their own class.
Why the question arises
Because two systems answer it differently. English and American law require a work to be recorded in some material form before copyright arises, so an unrecorded speech or an improvised jazz solo is unprotected until somebody writes or records it. Continental systems do not.
Berne left it open. Article 2(2) provides that it shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories shall not be protected unless they have been fixed in some material form.
India did not enact a general requirement. Section 13 says copyright shall subsist in original literary, dramatic, musical and artistic works and says nothing about fixation. So the starting point is that an unfixed literary or dramatic work is protected.
Where the Act does require a material form
Musical works, section 2(p). The definition is: a work consisting of music and includes any graphical notation of such work, but does not include any words or any action intended to be sung, spoken or performed with the music.
Read that carefully, because it changed. Before the Copyright (Amendment) Act, 1994 the definition required the music to be printed, reduced to writing or otherwise graphically produced or reproduced. It was on that older definition that Krishna Iyer J. observed in Indian Performing Right Society Ltd. v. Eastern India Motion Pictures Association, AIR 1977 SC 1443, that copyrighted music is not the soulful tune or the glorious voice but the melody or harmony reduced to print, writing or graphic form, and that the singer therefore had no copyright at all. The 1994 amendment removed the requirement, so a musical work no longer has to be notated.
Cinematograph films, section 2(f). A cinematograph film means any work of visual recording, and by section 2(xxa) a visual recording is the recording in any medium of moving images or their representations from which they can be perceived, reproduced or communicated. A film is therefore a recording by definition; there is no such thing as an unfixed film.
Sound recordings, section 2(xx). A recording of sounds from which such sounds may be produced regardless of the medium or the method. Again fixed by definition.
Fixation and the Form of Expression
Dramatic works, section 2(h). A dramatic work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, but does not include a cinematograph film.
That is the one express fixation requirement in the first class. The words "fixed in writing or otherwise" qualify the scenic arrangement or acting form. An improvised piece of theatre, never written down and never recorded, has a real difficulty under this definition.
Literary and artistic works, sections 2(o) and 2(c), contain no fixation requirement at all. A literary work includes computer programmes, tables and compilations; an artistic work is a painting, sculpture, drawing, engraving, photograph, work of architecture or work of artistic craftsmanship. Nothing there requires a record.
The practical position
A lecture delivered extempore and never recorded is a literary work. Section 2(o) does not require fixation, and section 17(cc) assumes the point by dealing expressly with the ownership of copyright in an address or speech delivered in public. A statute that allocates ownership in a speech is a statute that thinks a speech is protected.
But the person who claims it has an evidential problem, not a legal one. To prove infringement he must prove what he said, and without a record he will struggle. Fixation in India is a question of proof rather than of subsistence, for everything except a dramatic work.
And the moment somebody records the speech, a second right appears. The recording is a sound recording under section 2(xx) and its producer owns copyright in it under section 13(1)(c), while the speaker keeps the copyright in the words under section 13(1)(a). Section 13(4) keeps them separate.
A worked example
Professor Meena Raghavan gives an unscripted lecture at a conference in Pune. A member of the audience records it on a phone, transcribes it, and publishes the transcript as an article under his own name.
Does she have copyright in the lecture? Yes. It is a literary work under section 2(o), which requires no fixation, and section 17(cc) confirms that copyright in an address or speech delivered in public belongs to the person who delivered it, unless it was delivered on behalf of another.
Has the audience member infringed? He has reproduced the work in a material form, section 14(a)(i), and issued copies to the public, section 14(a)(ii). Publishing it under his own name also engages section 57, the right to claim authorship.
Does he own anything? He owns the copyright in the sound recording he made, under section 13(1)(c), but section 13(3)(b) may take it away: no copyright subsists in a sound recording made in respect of a literary work if, in making it, copyright in that work was infringed. And section 13(4) leaves her rights untouched in any event.
Fixation and the Form of Expression
What can she actually prove? Here the practical problem appears. She has no note of what she said. The recording is her best evidence, and it is in his hands. That is why fixation matters in practice even where the law does not require it.
Change one fact: it was an improvised piece of physical theatre rather than a lecture. Now section 2(h) matters: a dramatic work includes an entertainment in dumb show the scenic arrangement or acting form of which is fixed in writing or otherwise. If nothing was fixed, the claim to a dramatic work is in difficulty, and the performer would have to fall back on the performer's right in section 38, which needs no fixation at all.
Distinctions worth holding
| Class | Fixation required by the Act | Source |
|---|---|---|
| Literary work | no | section 2(o) |
| Dramatic work | yes, the scenic arrangement or acting form fixed in writing or otherwise | section 2(h) |
| Musical work | no, since 1994 | section 2(p) |
| Artistic work | no, though most are fixed by their nature | section 2(c) |
| Cinematograph film | yes, by definition | sections 2(f) and 2(xxa) |
| Sound recording | yes, by definition | section 2(xx) |
What it does NOT mean
It does not mean an unwritten work is easy to enforce. It means it is protected. Proof is a separate problem and usually the decisive one.
It does not mean fixation creates copyright. Recording somebody else's lecture gives you a copyright in the recording, not in the lecture, and section 13(3)(b) may take even that away.
And it does not mean the 1994 amendment gave singers a copyright. It removed the notation requirement for a musical work. The singer's protection came separately, in the performer's right in section 38, inserted by the same amending Act.
Quick revision
No general fixation requirement in Indian law. Berne article 2(2) leaves it to national law and India did not impose one.
Express requirements: a dramatic work, section 2(h), the scenic arrangement or acting form fixed in writing or otherwise; and, by their nature, cinematograph films and sound recordings.
Musical works stopped requiring notation in 1994. Before then the definition required the music to be printed, written or graphically produced, which is what Krishna Iyer J. was describing in the 1977 case.
A speech is a literary work and section 17(cc) allocates its ownership, which assumes it is protected.
Recording somebody's work gives you a copyright in the recording only, and section 13(3)(b) and section 13(4) between them keep the two apart.
Test yourself
1. Does the Copyright Act require a literary work to be written down? No. Section 2(o) imposes no fixation requirement and section 13 says nothing about it. Berne article 2(2) leaves the question to national law and India did not enact a requirement.
Fixation and the Form of Expression
2. Which class of the first four does contain a fixation requirement, and in what words? A dramatic work: section 2(h) includes a piece for recitation, choreographic work or entertainment in dumb show the scenic arrangement or acting form of which is fixed in writing or otherwise.
3. What did the 1994 amendment change about musical works? It removed the requirement that the music be printed, reduced to writing or otherwise graphically produced or reproduced, so a musical work no longer has to be notated.
4. You record a stranger's extempore lecture. What do you own? The copyright in the sound recording under section 13(1)(c), unless section 13(3)(b) removes it because copyright in the lecture was infringed in making the recording. You own nothing in the lecture itself.
5. Why does fixation still matter in practice? Because the plaintiff must prove the content of the work, and without a record he usually cannot.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.