USA – UK / COPYRIGHT / FIXATION

Intellectual Property Quarterly, Issue 4, 2000

Spoken words and Copyright Subsistence in Anglo-American Law

David J Brennan and Andrew F Christie

This article provides a critical description of the doctrine of fixation; that is, the requirement that the work should be reduced to material form. The authors offer a rationale for the doctrine and discuss its origins and history. They point out that "the absence of material form of an expression does not convert the expression into a mere idea; conversely, the reduction to writing of a mere idea does not afford copyright protection to an idea per se. The issues of the Idea/expression dichotomy and the material form requirement are distinct". Under the Berne Convention, fixation is a matter for national law (Article 2(2)): the authors quote an early authority on the justification of the requirement under English law on the basis that "materiality is essential to the determination of the identity of a thing". They compare the provisions of the UK Copyright, Designs and Patents Act of 1988, under which a Copyright does not subsist in any literary, dramatic or musical work unless and until it is recorded in writing or otherwise, with the corresponding provisions of the United States Copyright Act of 1976, under which copyright is said to exist in works "fixed in any tangible medium of expression". At the same time, the authors examine in some detail and with some sympathy the arguments and judgment in the US case of Ernest Hemingway v Random House, describing it as a "high-water mark for spoken word copyright". The US courts have even denied protection of material which is not a concrete expression of an idea rising to the level of a tangible product deserving of a common law copyright. State law may afford some relief: the article usefully includes a table of the various requirements at various periods of UK law, US federal law and US State law. But, in general, the authors conclude, "the treatments afforded to spoken words by the copyright laws of England and the US seem far removed from those which one might expect from a body of law whose underlying objectives in 1769 were anchored in protecting the fruit of the intellect". [20043]