Re: fixation

On 5/10/97, Steve Jamar <sjamar[_at_]langston.law.howard.edu> wrote:
>
> Jonathan D. Taft <<jon[_at_]taft.com> wrote: . . .
> >
> > How can this work? Since "fixation" requires "authority of
> > the author", . . .
>
> Hunting for logic problems in statutes may be fun, and may lead to
> improvements, and may even win cases on occasion, in the main one
> can expect statutes to be interpreted to achieve common sensical
> results.
>
> Here, the term fixed is used first with the idea of who is getting the
> copyright. This is different from infringement where one is concerned
> with copying . . .

Yes, I know this is a pedantic little exercise, but statutory logic is always desirable, especially when it can be easily obtained. Wouldn't this whole little glitch disappear if the phrase "by or under authority of the author" were deleted from the definition of "Fixed" in Section 101, and added back in Section 201 such that Section 201 then read:

1. Subject matter of copyright: In general

   (a) Copyright protection subsists, in accordance with this title    [17 USCS §§ 101 et seq.], in original works of authorship fixed,    <<by or under authority of the author,>> in any tangible medium of    expression, now known or later developed, from which they can be    perceived, reproduced, or otherwise communicated, either directly    or with the aid of a machine or device. Works of authorship include    the following categories: . . .

Note that Section 901(a)(3) uses its own definition of fixed (without the requirement of authority) as pertaining to mask work, and then puts authority back in when defining what is protected in Section 902.

Jonathan D. Taft
<jon[_at_]taft.com> Received on Mon May 12 1997 - 17:44:47 GMT