What is Fixation under the Copyright Act ?
It’s a well settled principle that Copyright does not subsist in a work unless and until the work takes some material form. This principle is known as the requirement of FIXATION. Thus a Copyright comes into existence when an author takes steps of placing the work on a material or physical object. For instance a writer writes ( the copyrighted work) on a piece of paper ( which is the physical object ) or a composer records (a copyrighted work) in digital media
(a physical object). Therefore in Fixation theory , two ingredients are clear and (i.e) first the “Copyright work” and second comes “Physical object”.
Merits of fixation.
- First and the foremost is to identify the distinct characteristic of a Copyright work and the physical object. If u purchase a book or a CD and destroy it completely by tearing it or burning it , the effect is that though the book and the CD that are in material form are totally destroyed but the “Copyright work” that was fixed in the physical object does not get destroyed.
- Fixation provides a definite demarcation when the work has come into existence, essentially for the purpose of applying the provisions of the law to identify the status of the author.
- Since Copyright is a form of monopoly in relation to the subject matter which is protected , there must be certainty as to what that subject matter is , in order to prove the existence of the Copyright work and to establish what the work consist of , so that it can be judged whether the work has been copied or otherwise infringed.
In the US the fixation requirement directly relates to the Copyright clause of the Constitution which limits the grant of Copyrights to writings of authors with specific provision in the legislation separately with clear categorisation in Copyrighted work. Hence no room for any confusion.
Fixation requirement of MUSICAL WORK under the Copyright Act 1957 (India).
“Musical work” was not defined either under the Imperial Copyright Act of 1911 or in UK Copyright Act 1956. Interestingly while introducing Copyright Act 1957 in India requirement of fixation in musical work was necessary as per the definition given but in 1994 amendment , the requirement was taken away (best known to the legislatures) and the reason given does not commensurate with practical application. Therefore, 1994 Copyright amendment , “Musical work” definition has given more scope for legal interpretation and because of grey patches of not having fixation principle in Copyright Act 1957, particularly 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.