Fixation in Canadian copyright law

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Fixation is a threshold consideration that must be used in copyright infringement cases by courts to determine if copyright actually exists. In Canada, a work "must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance"[1] to be subject to copyright protection. Fixation is not a statutory requirement in Canada and the rationale for its use in court has been the subject of much scrutiny.

Case Law[edit]

In Canadian Admiral Corp. v. Rediffusion Inc., [1954] 20 C.P.R. 75, the plaintiffs had purchased the exclusive right to live telecasts of football matches played by the Montreal Alouettes. Rediffusion Inc., the defendant, had taken those live telecasts and re-transmitted them to its own subscribers without license or permission. Canadian Admiral alleged copyright over the live telecasts and this was the central issue in the case.

The court found that in order for copyright to apply, there must be "something definite and ascertainable to protect".[2] Mere spoken words, not reduced to a definite ascertainable form which can be referred to at any time is not sufficient to create copyright. Rather, a work "must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance."[3] Thus, in the case of musical or dramatic works, musical notation or a script, would be respective examples of the requisite fixation.[4]

In contrast, live telecasts, lack any tangibility or permanence. Rather, images are captured on the field and transmitted to viewers as a television signal. The signal itself, constantly changing. While the plaintiff had argued that the process was analogous to a cinematographic production or photograph (both being subject to copyright), the court rejected this argument. Films and photographs produce something of a material form of more or less permanent endurance, that is, a negative of the image (or series of images).[5]

Note:

  • There is no copyright in the match itself. Broadcasting rights (the right Canadian Admiral Corp obtained) is grounded in real property (as opposed to intellectual property) concepts. The right purchased by the broadcaster is a right of access to the venue and to record what is happening.
  • There is no dispute that a recorded match would be subject to copyright. It is only whether there is copyright in the live telecasts.
  • Originality of the work is not contested in this case. The telecasts are not subject to copyright because they are not fixed.

Fixation in the Copyright Act[edit]

Under the Canadian Copyright Act (R.S., 1985, c.C-42), there is no definition for fixation nor is it required that every work be "fixed".

Under s.3(1)(1.1), however, any literary, dramatic, musical or artistic work, communicated by telecommunication, "is fixed even if it is fixed simultaneously with its communication." [6] This provision partially overrules the outcome in Canadian Admiral Corp. v Rediffusion Inc. Today, a live broadcast that is being simultaneously recorded, is protected by copyright. The definition of fixation within Canadian Admiral Corp. v Rediffusion Inc., remains the valid.

Under Part II, Performers' Rights, fixation is also addressed. The performer retains certain rights to reproductions of his/her performance depending on whether the performance was fixed or not. If the performance is not fixed, the performer has the sole right to communicate it to the public by telecommunication, to perform it in public (where it is communicated to the public by telecommunication otherwise than by communication signal), and to fix it in any material form.[7]

Comparison to the US[edit]

In the US, fixation is defined and required by the Title 17 of the United States Code. Copyright applies to a work, "when its embodiment in a copy or phonorecord is sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration."[8] This definition is largely similar to the view taken in Canadian Admiral Corp v Diffusion Inc., though fixation in the US need only be for a "transitory duration" whereas in Canada, fixation has been articulated as "more or less permanent endurance." [9]

Fixation and Infringement[edit]

To reproduce a copyrighted work in any material form without the consent of the copyright owner constitutes an infringement.[10] Thus, an infringing copy must be in a "material form".

Material form has been interpreted to mean "palpable, tangible, perceptible" and not merely ephemeral.[11] Yet in 2009, the Copyright Board of Canada concluded that 4-6 second buffer of copyrighted material stored on the RAM of satellite receivers satisfied the material form requirement of a reproduction despite being imperceptible to the user. That the user could potentially retrieve a more permanent ephemeral copy was noted.[12] Thus, ephemeral copies (including streaming, caching and temporary downloads) are considered to be in material form.[13]

On appeal to the Federal Court of Appeal, however, the material form issue was not addressed and it could still be argued that such temporary copies such as those held on RAM do not meet such a requirement. It is odd to consider, for instance, how "material form" has been construed from being something "capable of identification and having more or less permanent endurance" in Canadian Admiral to something "ephemeral" and incapable of being perceived in the Satellite Radio decision. In addition, it could be argued that section 30.71 in Bill C-11 will address temporary reproduction for technological process, exempting reproduction of work or other subject-matter if the reproduction forms an essential part of a technological process. This would be in line with a supreme court decision where caches on an IP server were found to be copies made purely for technical reasons (to improve efficiency and utility) and therefore fell within a copyright exemption for telecommunication providers.[14]

Fixation: Rationales and Considerations[edit]

Fixation, as a requirement for copyrightability, is capable of supporting different objectives:

  • Administration: having something to refer to makes it easier to determine whether copyright subsists and whether it has been infringed.
  • The Idea vs Fact Dichotomy: tangible forms make it easier to separate underlying ideas from the expression of those ideas.
  • Notice: material forms make it easier to identify what may be subject to copyright, allowing others to avoid infringement.
  • Reducing Opportunism: without material forms, baseless allegations of copyright can abound.
  • Non-Casualness: fixed forms are formalised, raising the threshold as to whether something should be protected.
  • Incentive to Codify Knowledge: fixed forms lend themselves better to preservation, transmission and dissemination.

Under these rationales, it can be seen how the requirement of fixation lends some certainty to the law. Passing conversations, for instance, would otherwise automatically qualify for copyright protection. Fixation can also be easily understood when the nature of the work itself, implies a material form: a photograph or painting, for example. On the other hand, fixation can be a slippery concept, particularly because it is not statutory required under the Canadian Copyright Act (R.S., 1985, c.C-42). Rather, one can argue that the Act specifically refers to works being protected "whatever may be the mode or form of its expression." [15] Thus, speeches, lectures and the like, fit well within this broad definition. The implication being that fixation is not a universal requirement.

Another issue with fixation becomes evident when we consider that works are often subject to revision and constant update. In the case of an electronic database where the data changes by the minute, for example, how can the system be considered "fixed"? [16] Other poignant examples include performances that are improvised or interactive art (such as immersive theatre). In these cases, fixation appears to be making a value distinction between what kinds of artistic works are worthy of protection.

Rigidly requiring fixation reduces the reach of copyright by restricting the number and kinds of work to which copyright can offer protection. This favours the public interest in the sharing and dissemination of information at the expense of the creator or author receiving a just reward. In the US, this tipping of the scales in favour of the public interest sits well with the general approach to copyright protection, the aim of which is constitutionally mandated as the "Progress of Science and Arts". In Canada, however, there is no constitutional guidance on how to balance the competing interests of the public with those of the creator or author. In CCH Canadian Ltd. v. Law Society of Upper Canada [2004] SCJ No.12, the Supreme Court of Canada emphasized taking the "middle way" between US and UK copyright law on the question of originality. Even if this "middle way" approach was adopted with regards to fixation, rejecting the US requirement for fixation as one extreme, it remains unclear what this would be mean in actual practice - rather, it may well be the case that "the whole concept of fixation requires rethinking." [17]

References[edit]

  1. ^ Canadian Admiral Corp v Rediffusion Inc., [1954] 20 C.P.R. 75, para 28.
  2. ^ Canadian Admiral Corp v Rediffusion Inc., [1954] 20 C.P.R. 75, para 30.
  3. ^ Canadian Admiral Corp v Rediffusion Inc., [1954] 20 C.P.R. 75, para 28.
  4. ^ Canadian Admiral Corp v Rediffusion Inc., [1954] 20 C.P.R. 75, para 28.
  5. ^ Canadian Admiral Corp v Rediffusion Inc., [1954] 20 C.P.R. 75, para 35.
  6. ^ Canadian Copyright Act (R.S., 1985, c. C-42), section 3(1)(1.1) with reference to section 3(1)(f)
  7. ^ Canadian Copyright Act (R.S., 1985, c. C-42), section 15(1)
  8. ^ 17 United States Code § 101
  9. ^ 17 United States Code § 101
  10. ^ Canadian Copyright Act (R.S., 1985, c. C-42), section 27(1) and 3(1)
  11. ^ Eros-Equipe de recherche operationnelle en sante Inc v Conseillers en gestion et infromatique C.G.I. Inc (2004), 35 CPR (4th 105 at para 113
  12. ^ Statement of Royalties to Be Collected by SOCAN, NRCC and CSI in Respect of Multi-Channel Subscription Satellite Radio Services [2009] CBD No 4 at para 102
  13. ^ Ibid
  14. ^ Society of Composers, Authors and Music Publishers of Canada (SOCAN) v Canadian Association of Internet Providers [2004] 2 SCR 427
  15. ^ Canadian Copyright Act (R.S., 1985, c. C-42), section 2: see definition of "original literary, dramatic and artistic work"
  16. ^ David Vaver, Intellectual Property Law, 2nd Edition, Irwin Law: Toronto, 2011. See "Fixation" at pg 107.
  17. ^ David Vaver, Intellectual Property Law, 2nd Edition, Irwin Law: Toronto, 2011. Pg 108.