THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA

INTELLECTUAL PROPERTY LAW

CRITICALLY EVALUATE FIXATION IN COPYRIGHT LAW

MONSOON SEMESTER 2019

PATHLAVATH DIGVIJAY NAIK

216099

4TH YEAR B.A.LLB

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Table of Contents
Introduction ........................................................................................................... 3

Fixation in literary works and musical works ....................................................... 4

Fixation in case of ‘Dramatic Works’ ................................................................... 7

Conclusion ............................................................................................................ 8

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 Introduction

Fixation in copyright law is a very disputed criteria for copyright protection. Article 2(2) of the
Berne Convention for the Protection of Literary and Artistic Works1 states that “It shall,
however, be a matter for legislation in the countries of the Union to prescribe that works in
general or any specified categories of works shall not be protected unless they have been fixed
in some material form.” This provision of the Berne Convention directs the signatory countries
to ensure that works are subject to fixation but only to the satisfaction of that country’s
+legislation. Essentially, it is merely a directory and not mandatory provisions for the country
to move towards the recognition of fixation for protection under copyright law.

In this paper the author will try to analyse the Indian legislature and judiciary’s applicability of
the threshold of fixation for copyright protection. In the first part of the paper the author shall
introduce the concept of fixation while analysing the laws of different countries and their
interpretation of the same. In the second part of the paper the author shall analyse the position
of fixation in re dramatic work. In the third part the author shall conclude with certain
observations and recommendations.

1
Berne Convention for the Protection of Literary and Artistic Works, 1886.

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 Fixation in literary works and musical works

As stated earlier that the Berne Convention2 via its Article 2(2) provides a directory
requirement for countries to decide upon the imposition of fixation. Essentially, the
convention’s lack of compulsory fixation requirement3 allows the 165 signatories to the
convention to determine independently on the requirement of compulsory fixation of work in
a tangible format, that it need not be fixed at all, or that there is another determined format in
which it shall exist between both the extremes4.

Fixation is what separates the protected from the unprotectable original works of
authorship5.While the copyright law ensures certain intellectual property rights to the work, the
fixation requirement ensures that the intellectual property right under the law is tied to the
work6. Since the copyright law is based on the primary principle of incentivisation of creation
by author, fixation ensures that the works which are fixed are protected by the countours of
copyright protection7.

In most of the common law jurisdictions, fixation is crucial. But the same can be interpreted to
mean that fixation though adopted by the legislature of the country does not require the fixation
of all works but that of specific works.

In the case of literary works the Indian Copyright Act states that ““literary work” includes
computer programmes, tables and compilations including computer [databases]”8. From this
definition it can be seen that there is no indication of whether the work is to be fixed or not. In
common parlance it can be said that “literary work” may be taken to be understood as any
work written or printed in any language such as novels, poetry, history or books on any subject
whatsoever.9 On the other hand, the Copyrights, Designs and Patents Act, 1988 of the United
Kingdom defines literary work as “any work, other than a dramatic or musical work, which is

2
Id.
3
Molly Torsen, “Intellectual Property and Traditional Cultural Expressions: A Synopsis of Current Issues”, 3
Intercultural Hum Rts L Rev. 199, 204 (2008).
4
Ysolde Gendreau, “The Criterion of Fixation in Copyright Laws”, 159 Revue Internationale du Droit d’Auteur
110,112.
5
Evan Brown, Fixed Perspectives: The Evolving Countors of Fixation requirement in copyright law, 10 Wash.
J.L Tech & Arts 17, 2014.
6
Id.
7
Id.
8
Copyright Act, 1957.
9
P. Narayanan, Law of Copyright and Industrial Designs, 4 th edn, 2010.

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written, spoken or sung”10. The United Kingdom Act to ensure that there is copyright protection
in the literary work mentions as a precondition that there must be fixation in the form of either
writing or spoken or otherwise singing. While interpreting the term written in the definition it
has been stated that literary work “must be expressed in some form of notation”11. This term is
not defined properly in the Indian Act. The inclusion of copyright database in the Indian
definition can be deduced to understand that fixation of a literary work by electronic means
would also be sufficient for copyright protection12.

The United States on the other hand states that the work must be fixed in some tangible medium
of expression. The US Law states that for a wide array of works to avail copyright protection
for such works the said work must be fixed. This also includes literary works. The Indian
Copyright Act in its stead does not mention any kind of criteria or does not even indicate
whether fixation is compulsory for literary work. But when the copyright is being obtained it
is to be implied that there must be fixation of work for the copyright to subsist.

The Practice and Procedure Manual 201813 states that one of the protection pre-requisites that
is embedded in literary work is publication of work. The Manual has stated that for the works
to be protected the work must firstly be published in India. This basis of the work to be
published could be interpreted as a source of fixation of the work. Since the publication of the
work may be interpreted to be in some tangible medium, it can be construed that the literary
work once published will meet the fixation threshold. Section 3 of the Copyright Act14 states
that ““publication” means making a work available to the public by issue of copies or by
communicating the work to the public.”. Taking the literal interpretation of this section, it can
be that the threshold that is set by the act is enough to meet the standard of fixation. As there
is publication of work in a form, it can be implied that the work is fixed in some which is
communicated to the public.

In the Indian Copyright Act as was prior to the amendment in 1994 stated that ““musical work”
means any combination of melody and harmony or either of them, printed, reduced to writing

10
Copyrights, Designs and Patents Act, 1988
11
Copinger on Copyright, 12th Edn, 153.
12
P. Narayanan, Law of Copyright and Industrial Designs, 4 th edn, 2010.
13
Practice and Procedure Manual: Literary Works, Copyright Office, Government of India, available at :
http://copyright.gov.in/Documents/Manuals/LITERARY_MANUAL.pdf.
14
Copyright Act

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or otherwise graphically produced or reproduced”15. But post the amendment the Act read
musical work as ““musical work” means a work consisting of music and includes any
graphical notation of such work but does not include any works or any action intended to be
sung, spoken or performed with the music”.16 From the above stated amendment it can be
imputed that the Indian legislature was moving towards removing fixation as a pre-condition
of copyright in the case of musical works. This move of the Indian legislature from keeping
fixation as a pre-condition to getting rid of is one which shows the transformation of the
legislature’s mindset. This definition as stated in the act will be one in which there shall be
copyright protection even though the same has not been reduced to any material form 17.
Nimmer states that a sound recording copyright may be claimed in the aggregate of sound
embodied in any tangible material which is not only limited to phonograph disc on any object
on which the sound is fixed and can be communicated to the public 18. Essentially under the
Indian Copyright Registration regime, when there is development of a melody which has been
represented as sheet music, the same melody when recorded in any other medium shall also
have the right to be registered for copyright protection under the sound recording category like
the original sheet music as long as there is fixation of the melody in some kind of tangible
form19.

15
Id.
16
Id.
17
P. Narayanan, Law of Copyright and Industrial Designs, 4 th edn, 2010.
18
Melville B Nimmer, Nimmer on Copyrights: A Treatise on the law of Literary, Musical and Artistic Property,
and the Protection of Ideas, 2010.
19
Public Notice inviting reviews and comments of stakeholders on draft guidelines, Copyright Office,
Government of India, available at:
http://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_
guidelines/Musical_Work.pdf.

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 Fixation in case of ‘Dramatic Works’

The Copyright Act, 1957 states that ““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”20. In the
Indian Copyright scenario, a dramatic work only gets protection if it is put in a fixed form i.e.
there is fixation of work in the form prescribed under the Act21.

Section 2(h) of the Copyright Act, 1957 states that ““publication” means making a work
available to the public by issue of copies or by communicating the work to the public.”22. In
the case of M/s. Fortune Films International v. Dev Anand23, the court stated that “Under the
definition to be found in sub-section (h) only for a dramatic work of any of these three types
specified (i)piece for recitation (ii) choreographic works, or (iii) entertainment in dumb show
which would be included and then further only where the scenic arrangement or acting form
of which fixed in writing or otherwise”. The court had observed that although “or otherwise”
has been stated, the same has been provided for the modern means of fixation. Since the
definition does not include cinematographic film, it clearly shuts out any contention wherein
there is a dramatic performance of an artist which is fixed by recording of the same will be
dramatic work to be considered for copyright protection under the act 24. The court uses the
broad and expansive terminology of the statute to remove any ambiguities wherein fixation of
cinematographic works under the statute will not receive protection under the ambit of dramatic
works25. The court additionally observes that prior to the acting or the scenic arrangement, the
terms “fixed in writing or otherwise” would seem to suggest that the work prior point would
qualify to be dramatic work and hence attain protection under the copyright act26.

20
Copyright Act, 1957
21
Cornish & Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, Thomson Sweet
and Maxwell, 5th ed. 2003
22
Copyright Act, 1957,
23
M/s Fortune Films International v. Dev Anand, AIR 1979 Bom. 17.
24
Id.
25
Id.
26
Id.

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 Conclusion

The Berne Convention gives the signatories wide powers to decide upon whether fixation under
the law is necessary for availing copyright protection. Many common law countries under the
ambit this scope provided by the convention have enlisted fixation as a pre-condition for
availing copyright protection.

India has taken a very tricky position on the same. In the case of literary works, there is no
clear indication of whether the work is to be fixed or not. But while availing copyright
protection for literary works, publication is a pre-condition which seems to suggest that the
work must be fixed. In case of musical works, the Indian legislature has through the amendment
changed the fixation criteria under the act.

With the advancements in technology and science, it seems to be that the Indian Copyright Act
is falling behind. The Indian Copyright Act was formulated at a time when a work was
embodied in a historical medium of mass expression like printed book, photograph or audio
expressions27. Although the act has been amended multiple times with the inclusion of
databases within the definition of literary work, there seems the need to carefully elaborate a
demarcation of what is to be the fixation criteria for the work to attain copyright protection.
Additionally, there must be stringent requirement of fixation in the case of literary work which
must be elucidated in the section with utmost clarity. The Indian Copyright Act has a far and
wide ambit to reach with the advancements in technology and science and hence the
requirement of fixation is one of the most important tasks which the legislature must deal with
on the earliest.

27
Evan Brown, Fixed Perspectives: The Evolving Countors of Fixation requirement in copyright law, 10 Wash.
J.L Tech & Arts 17, 2014.