To Be or not to Be Fixated on Fixation: Examining how Copyright Law Precludes Live Art

  • Introduction

‘Live art’ refers to innovative performances undertaken or staged by artists, and most often portrays an explanation to a chosen theme. The Live Art Development Agency describes it as ‘Art that invests in the process, presence and experience as much as the production of objects or things.’ [1] The experience is such that the artist(s) chooses to make work directly in front of the audience, and the live art comes into being at the actual moment of encounter between the artist and a spectator. [2] While its expansive context has been unable to afford the art form a single definition, it has been fittingly referred to as a cultural strategy. [3] In India as well, albeit gradually, this form of expression has been welcomed on national television shows, independent artists have been generously appreciated, and live art exhibitions are becoming a weekend favourite. [4]


However, with such evolving outputs of expression, courts wrestle with the application of copyright law — especially with respect to the parameter of fixation. The prerequisites that a work is original and fixed in a tangible medium have been sine qua non of availing protection under copyright laws. While originality itself is subject to an array of jurisprudence that is not discussed in the article, it is largely determined on a case-to-case basis. The fixation requirement on the other hand offers an unhesitating rigidity and despite efforts to relax the pre-condition, developments in both digital media and contemporary art have been challenged. [5]


In this light, this article deliberates upon the meaning and implication of the fixation requirement. This encompasses analysis on what ‘to be fixed in a tangible medium’ denotes, and how the standard is variable across jurisdictions. The author then goes on to examine how the simultaneous rigidity and absence of definition of ‘fixation’ presents a hitch worth considering. This is followed by examining the benefits and disadvantages that the precondition presents, both, to courts as well as to artists. The article concludes by exploring what this means for the upcoming forms of contemporary art, with specific reference to live art.

  • The Fixation Requirement

Simply put, ‘fixation’ implies that a work is expressed in a medium that is tangible, i.e., that the work exists in some permanent form. It is interesting to note that the Berne Convention is broad enough to permit member countries to allow whether or not ‘fixation’ is a prerequisite of availing copyright protection. Article 2 under Section 2 of the Berne Convention states that “It shall 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,” thereby allowing jurisdictions to individually determine the requirement. Most countries do not require that a work be produced in a particular form to obtain copyright protection. For instance, Spain, France, and Australia do not require fixation for copyright protection. On the other hand, civil law countries such as the United States and Canada require that the work be fixed in a tangible medium of expression to obtain copyright protection.[6] Even within the jurisdiction that places this requirement, the threshold may differ. For example, the United States Copyright law recognises the requirement as fulfilled only when the author, or someone authorised by the author, makes the fixation.[7] Conversely, the U.K. copyright law considers that even an unauthorised fixation, such as a surreptitious recording, brings the work within copyright, though it may make the person doing the unauthorised fixation an infringer.

In India, for a work to enjoy copyright, it must be:

  • Original,

  • A ‘work’ as defined under section 13 of the Copyright Act, 1957 (“Act”), and

  • Fixed in a tangible form.

Though the Act itself does not expressly lay down any requirement, the Copyright Manual on Registration of Artistic Works and Incidental Issues, states in its foreword that “Copyright is a form of protection provided by the Indian legislature to authors/ owners of original works of authorship from the time the works are created and expressed in a tangible form”.[8] The Manual however does not fully address the affair, inasmuch as it does not define the extent or limitations of what the phrase ‘tangible form’ means. This (rightly) paves way for ambiguous arguments. For instance, in the case of Emergent Genetics India Pvt. Ltd vs. Shailendra Shivam And Ors.[9], the Defendant’s counsel, based on the liberty provided under the Berne Convention in this respect, urged next that unlike the United Kingdom, "fixation," i.e., the existence of a literary or copyrightable work in tangible form, is not a precondition for copyright to subsist in a work in India. Though the Court passingly addressed and dismissed this argument, it is only to be noted at this juncture that such arguments will remain rather fair till the concerned legislative texts do not clarify the position.


However, such aberrations are in the minority, and the admissible position today is that fixation is a requirement. For instance, in Vipul Amrutlal Shah vs. Shree Venkatesh Films Pvt. Ltd. & Ors.[10], the Court, in determining the copyrightability of the theme of a Hindi Film, upheld observed that it is only when the idea is translated into literary works i.e., a tangible form, that copyright exists. Conversely, the US Copyright Law has been very specific in establishing the fixation requirement.[11] It expressly lays the preliminary ground in defining ‘work’ itself. The Code, in Section 101, states that a work is ‘created’ when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time. Section 101 further goes on to define a work as “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. Though Indian law is yet to borrow the idea of expressly incorporating the terminology related to ‘fixation’ into the letter of its law, judicial standpoint affirms that fixation in a tangible medium is a precondition.

  • Examining the Virtues and Vices of Fixation

The primary benefit of having fixation as a requirement is that it aids the process of legal determination. In other words, it provides courts deciding copyright matters with corroboration or confirmation of sorts, that the work in dispute does, in fact, exist. Drawing from the research in a paper titled ‘Copyright as Rule of Evidence,’ several suggestions in favour of the requirement are based on the premise that the prerequisite of fixation is, in reality, motivated by evidentiary concerns.[12] Thus, one of the most important reasons for requiring fixation as a condition precedent to copyright protection is to ensure that a copyright claimant will be able to provide to the Court documentary evidence of the copyrightable subject matter. As one commentator so adeptly words it, “without fixation, copyright law would forever be mired in disputes over the definition and boundaries of the works claiming copyright protection.” Further, from an author’s perspective, the rationale of fixation stems from the justification that it increases an author’s ability to profit from his work because fixed versions can be sold, leased, and otherwise profitably transferred, i.e., a fixed expression is durable and transferable. Opposed to this, work that is not tangible, for instance live art, will not be able to substantially support the profit-making activities of the artists involved. Fixation therefore enables operations to run in an easier manner vis-à-vis the artists and the courts of law, among other stakeholders.


Conversely, a disproportional relation can be identified between the growth of present-day art and the restriction that the fixation requirement poses, i.e., as the arts and creations of today continue to expand in terms of expression, this pre-condition – in definition and application – sets back their protection. Even when one extends this conversation to the exponential growth of technology and consequently the creations it allows, ‘fixation’ comes across as a limiting factor. It only seems fair to quote Ethan Katsh at this juncture, who opined that, “At the heart of the new media are capabilities for working with space in novel ways and for overcoming constraints that are assumed to be fixed, but, in reality, are only constraints.” We cannot forget that copyright law is a creation of the print era, and that without continuous amendment, the law may fail to keep up with today’s expression – which has sustained far beyond ‘print’. Researchers have also pointed out that the fixation requirement is ironic and problematic since the value of most copyrighted works lies in the images and ideas for which the physical manifestation is merely a vehicle.[13]

  • A Case for Live Art

Live art has much to offer and is gradually engaging an increasing range of audiences. Live art is an inherently limitless concept, thereby allowing its authors to create and engage so much more as compared to the more mainstream sources of art. Such work in the recent past has been aesthetic, fashionable, educational, or purposeful, among others, – and sometimes even all at once. Audience engagement is key inasmuch as it allows for the receiver of the artistic work to perceive the piece or performance and does not project a standard viewpoint of the author. Live art is therefore an upcoming artistic field, and deserves the attention, both, socially as well as legally.


However, the dematerialisation of artwork articulated in performance-related live art raises complex legal issues as to the control in the work, in addition to which the rigour of the fixation requirement does not lend copyright protection to them.[14] Involved artists are thus likely to, and expected to, become demotivated over the long run. Involved artists are pushing for protection and are rightly drawing comparisons to the elaborate set of copyright protections that are received by mainstream music and visual arts. The legal fraternity must not underscore the importance that copyright holds in terms of supporting and moulding creativity. If such rights are being extended to authors of mainstream works, then their counterparts who are working towards newer concepts, such as live art, should be recipients of the facility as well. Moreover, the notion of providing copyright protection to live art could not possibly be so alarming – it wouldn’t defy the idea-expression dichotomy, after all. Since live art is tangible and is in a fixed form, though only for a shorter duration, the ‘issue’ with extending protection may only be the lack of permanency in its tangibility. This is implicit of the need to only reduce the vigour of ‘fixation,’ and not be done with it in entirety.

Currently, ‘authors’ of live art are presented with little opportunity in terms of copyright protection, including especially re-performance rights in their work. One such way to protect their work is contract law, i.e., the artist enters into exclusive performance agreements, non-disclosure agreements, etc. This too has its own limits.[15] For instance, a contract only binds the parties to it, but cannot prevent non-parties from recording or recreating a performance without the artist’s authorisation. Artists are thereby left remediless in the absence of an umbrella protection regime, such as copyright law.


It is thus time to revisit how fixed courts and legislatures have been on ‘fixation’ and devise a more inclusive copyright regime. Contemporary forms of artistic works seek to vigorously construct, convey and compel – as did earlier works, but the chief difference lies in the fact that contemporary artists are as spirited about the form of expression. Copyright law, among its larger scheme of things, seeks to celebrate creativity, and it is in this ethos that it should devise a middle ground that’ll allow live art to within the protection of the copyright law.


Footnotes:

[1] Laura Llyod, Absolute Beginners: Live Art, Total Theatre Magazine (2008) Available at: http://totaltheatre.org.uk/archive/features/absolute-beginners-live-art


[2]Joshua Sofaer, What is Live Art, Available at:

https://www.joshuasofaer.com/2011/06/what-is-live-art/


[3] What is Live Art, Shades of Noir (2017) Available at: https://shadesofnoir.org.uk/what-is-live-art/


[4]Carter Road Turns into a Live Art Gallery, Business Standard (2018) Available at: https://www.business-standard.com/article/news-ani/carter-road-turns-into-a-live-sunset-art-gallery-118110900976_1.html (Also see: https://vilasnayak.com/profile/ )


[5] Megan M. Carpenter, If it's Broke, Fix It: Fixing Fixation, 39 COLUM. J.L. & ARTS 355 (2016)


[6] The Requirements for Copyright Protection-JA, Available at: https://cyber.harvard.edu/cx/The_Requirements_for_Copyright_Protection-JA#Fixation


[7] Jane Ginsburg, Overview of Copyright Law (2016), Columbia Public Law Research Paper No. 14-518, Available at: https://scholarship.law.columbia.edu/faculty_scholarship?utm_source=scholarship.law.columbia.edu%2Ffaculty_scholarship%2F1990&utm_medium=PDF&utm_campaign=PDFCoverPages


[8]Copyright Manual on Registration of Artistic Works and Incidental Issues, Available at: https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Artistic_Works.pdf


[9] CS (OS) 50 of 2004, Available at: https://indiankanoon.org/doc/183763759/


[10] CS No. 219 of 2009, Available at: https://indiankanoon.org/doc/54689491/


[11]Copyright Law of the United States (Title 17), Available at: https://www.copyright.gov/title17/


[12] Douglas Gary Lichtman, Copyright as a Rule of Evidence, Chicago Unbound (2002) Available at: https://chicagounbound.uchicago.edu/law_and_economics?utm_source=chicagounbound.uchicago.edu%2Flaw_and_economics%2F130&utm_medium=PDF&utm_campaign=PDFCoverPages


[13] Douglas J. Masson, Fixation on Fixation: Why Imposing Old Copyright Law on New Technology Will Not Work, 71 Indiana Law Journal 1050-1066 (1996).


[14] Henry Lydiate and Daniel McClean, Performance Art and The Law (2011), Available at:https://www.artquest.org.uk/artlaw-article/performance-art-and-the-law-2/


[15] Id.

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