Fixation or Reduction of Works into Permanent Form

 

Fixation or Reduction of Works into Permanent Form

 

A copyright work exists only when embodied in some physical form. Reduction of a work into a permanent form is a precondition for copyright. This is the assumption of Nigerian copyright legislation that all subject matter requires to exist in some permanent form before it gains copyright. Thus, in the case of most artistic works it is only when the particular painting, photograph or other work is executed that the idea for it is transmuted into expression, the act of creation and the “fixation” of the work are indivisible[1]. This principle postulates that the ideas as a unit of thought cannot be appropriated by copyright, until that idea is published[2]. The principle to protect only form emanates from the necessity to safeguard the public against an individual’s claim of proprietary ownership over his ideas[3]. First, this requirement has obvious evidentiary value since a work that is not fixed in a perceptible or retrievable format would be difficult to produce in court in order to compare it with an allegedly infringing copy. This flexible definition eliminates the prospect of foreclosing protection because of mere changes in the technology of fixation. It is possible to look upon this as a corollary of the principle that protection goes only to the particular expression of ideas.

 

The fixation requirement serves the purpose of defining the scope of the claimed protection in objective terms. It is possible to conceive a speech in one’s mind and deliver it from memory without writing it down. However, such memory work without permanent form has no copyright. In the case of Albernethy vs. Hutchinson[4], the court refused to grant an injunction to prevent the publication by unauthorized persons of oral lectures delivered by the plaintiff since he could not produce the notes from which he prepare and delivered the lectures. Similarly, in Macklin vs. Richardson[5], the defendant was prevented from publishing his copy of the plaintiff’s play, which the former had taken down from the mouth of actors at a private performance. A court will more readily come to the aid of the plaintiff where it can be shown that there is a recording of his composition.

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In the United States of America, Copyright Act provides for the situation by stipulating that the fixation of the work must be done “by or under the authority of the author”. The composer who is illiterate in music would well be advised to put his music on audio tape or some other recording device in order to gain protection. Otherwise, he stands the risk of being denied copyright if he merely improves a tune from memory without having reduced it to intelligible notation or a sound recording.

Fixation or Reduction of Works into Permanent Form

Fixation would imply something more than a transient projection. The medium must allow for some sustained presence of a permanent nature. The definition of the medium is sufficiently elastic to include any medium of expression that is presently known, for example, writing on paper, painting on canvas, and any other that may be developed in future. In addition, it includes medium from which the materials can be perceived or reproduced. This may be either directly with human senses or indirectly with the aid of any mechanical, electronic or other device. For example, microfilm or computer program would be considered fixed for this purpose since they are machine legible. According to the Act[6], an unrecorded story, lecture or performance of a dramatic work is not eligible for copyright protection though the performance itself may be protected as a performer’s right.

 

[1] Unreported, Suit No. HOS/23/68 decided 27th June, 1969.

[2] See the case of Merchandising Corporation of America Inc. vs. Harpbond (1983)F.S.R. 32 (supra)

[3] UNESCO Paper No. UNESCO/PRS/COPY/CME.11/14 Paris. 15th August, 1987, p.9

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[4] (1825) 47 E.R. 1313

[5] (1770) 27 E.R. 451.

[6] Section 26, Copyright Act, op cit.

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