U.S. copyright law
|“||a work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is fixed for purposes of this title if a fixation of the work is being made simultaneously with its transmission.||”|
Congress provided considerable room for technological advances in the area of fixation by noting that the method of fixation in copies or phonorecords may be "now known or later developed." According to the House Report accompanying the 1976 Copyright Act, Congress intended the terms "copies" and "phonorecords" to "comprise all of the material objects in which copyrightable works are capable of being fixed."
The form of the fixation and the manner, method or medium used are virtually unlimited. A work may be fixed in "words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia"; may be embodied in a physical object in "written, printed, photographic, sculptural, punched, magnetic, or any other stable form"; and may be capable of perception either "directly or by means of any machine or device 'now known or later developed.'"
In digital form, a work is generally recorded (fixed) as a sequence of binary digits (zeros and ones) using media specific encoding. This fits within the House Report's list of permissible manners of fixation. Virtually all works also will be fixed in acceptable material objects — i.e., copies or phonorecords. For instance, floppy disks, compact discs (CDs), CD-ROMs, optical disks, compact discs-interactive (CD-Is), digital tape, and other digital storage devices are all stable forms in which works may be fixed and from which works may be perceived, reproduced or communicated by means of a machine or device.
The question of whether interactive works are fixed (given the user's ability to constantly alter the sequence of the "action") has been resolved by the courts in the context of videogames and should not present a new issue in the context of the Internet. Such works are generally considered sufficiently fixed to qualify for protection.
A transmission, in and of itself, is not a fixation. While a transmission may result in a fixation, a work is not fixed by virtue of the transmission alone. Therefore, "live" transmissions via the Internet will not meet the fixation requirement, and will be unprotected by copyright law, unless the work is being fixed at the same time as it is being transmitted. The Copyright Act provides that a work "consisting of sounds, images, or both, that are being transmitted" meets the fixation requirement "if a fixation of the work is being made simultaneously with its transmission." To obtain protection for a work under this "simultaneous fixation" provision, the simultaneous fixation of the transmitted work must itself qualify as a sufficient fixation. A simultaneous fixation (or any other fixation) meets the requirements if 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."
Works are not sufficiently fixed if they are "purely evanescent or transient" in nature, "such as those projected briefly on a screen, shown electronically on a television or cathode ray tube, or captured momentarily in the 'memory' of a computer." Electronic network transmissions from one computer to another, such as e-mail, may only reside on each computer in RAM (random access memory), but that has been found to be sufficient fixation.
Semiconductor Chip Protection Act
Under Section 901 of the U.S. copyright law, "a mask work is fixed in a semiconductor chip product when its embodiment in the product is sufficiently permanent or stable to permit the mask work to be perceived or reproduced from the product for a period of more than transitory duration."
- 17 U.S.C. §102(a).
- H.R. Rep. No. 95-1476, at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67 (hereinafter House Rpt.).
- Id. at 52.
- See id.
- See, e.g., Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir. 1982) (putting work in "memory devices" of a computer "satisf[ies] the statutory requirement of a 'copy' in which the work is 'fixed'").
- See, e.g., Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989).
- Unfixed broadcasts are not within the subject matter of federal copyright law. Therefore, protection of such works is not preempted and may be provided by state statutory or common law. See 17 U.S.C. §301.
- See 17 U.S.C. §101 (definition of "fixed"); see also Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663, 668 (7th Cir. 1986) (telecasts that are videotaped at the same time that they are broadcast are fixed in tangible form), cert. denied, 480 U.S. 941 (1987); National Football League v. McBee & Bruno's, Inc., 792 F.2d 726, 731-32 (8th Cir. 1986) ("the legislative history [of the Copyright Act] demonstrates a clear intent on the part of Congress to resolve, through the definition of 'fixation' . . . , the status of live broadcasts, using — coincidentally but not insignificantly — the example of a live football game"). It is understood that the "fixation" must be made or authorized by the author.
- 17 U.S.C. §101.
- House Rpt., at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67.
- See Advanced Computer Servs. of Michigan Inc. v. MAI Sys. Corp., 845 F. Supp. 356, 363 (E.D. Va. 1994) (conclusion that program stored only in RAM is sufficiently fixed is confirmed, not refuted, by argument that it "disappears from RAM the instant the computer is turned off"; if power remains on (and the work remains in RAM) for only seconds or fractions of a second, "the resulting RAM representation of the program arguably would be too ephemeral to be considered 'fixed'"); Triad Sys. Corp. v. Southeastern Express Co., 1994 U.S. Dist. LEXIS 5390, at *15-19 (N.D. Cal. March 18, 1994) (“[C]opyright law is not so much concerned with the temporal ‘duration’ of a copy as it is with what that copy does, and what it is capable of doing, while it exists. ‘Transitory duration’ is a relative term that must be interpreted and applied in context.”).
- 17 U.S.C. §901(a)(3).