Re: Bugs in the Copyright Code, redux (was: Rights to live performances / fixation)

On 5/9/97, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> The only reasonable way to read the definition of "fixed," I fear, is to
> completely ignore the phrase "by or under the authority of the author"
> when construing what is a "copy" in a 106(1) infringement context, and
> give operation to phrase only in the 102(a) subject matter context.
> After all, the authority of the author (who may or may not be the
> copyright owner) is irrelevant in an infringement context.
>
> As you point out, otherwise, the only way you can have a 106(1)
> infringement are the cases where a) a copyright has been assigned (so that
> the author and the copyright holder are not the same person; b) the author
> has purported to give authority to the copier to copy the work; and c) the
> copyright owner has not authorized the copying.
>
> I've noted this anomaly before (see the attached message). It's odd that
> this obvious error could survive so many drafts and redrafts.

Just thinking out loud here, but shouldn't the "authority" language be read as a gloss on the intent of the author (that is, the originator of the expression at issue) to create a temporally stable representation of the auctorial expression, so that, for example, if I give an extemporaneous speech and ask someone to record it for me, the recording acts as a fixation of the speech, so that I am then the owner of its copyright (absent some other consensual arrangement), but when someone else records it, they acquire copyright in their recording, but not in the underlying text. Then, the question of what is a "copy" of the "work" becomes whether the *speech* in the former case or the *recording* in the latter has been reproduced in some other tangible form. The forms in which the recording can be reproduced will be more limited than those in which the speech can be reproduced, but that's as it should be, since the copyright in the recording is so much thinner.

Vance R. Koven
<vrkoven[_at_]world.std.com> Received on Wed May 14 1997 - 14:49:37 GMT