In Canada, a work "must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance"[1] to be subject to copyright protection.
75, the plaintiffs had purchased the exclusive right to live telecasts of football matches played by the Montreal Alouettes.
[2] Mere spoken words, not reduced to a definite ascertainable form which can be referred to at any time is not sufficient to create copyright.
While the plaintiff had argued that the process was analogous to a cinematographic production or photograph (both being subject to copyright), the court rejected this argument.
"[4] This provision partially overrules the outcome in Canadian Admiral Corp. v Rediffusion Inc. Today, a live broadcast that is being simultaneously recorded, is protected by copyright.
§101, fixation takes place in a work, "when 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.
"[6] In USA, in order to qualify for the copyright protection, a work must be fixed in a tangible medium of expression.
Further, in the Midway Manufacturing Co. v. Artic International, Inc.,[citation needed] the court held that the law does not require work to be written down in the exact way that it is perceived by the human senses (eyes).
This litigation involved the a cable network provider known as 'Cablevision' which offered a remote storage DVR technology for their viewers.
The law provides remedies in case of an unauthorized fixation in the sound or images of the live performance in a phonorecord or copy.
A work is fixed in a tangible medium of expression when it’s written down, recorded, or otherwise made permanent so that it can be perceived and reproduced by others.
This leaves ground for exploring the possibility of copyright protection for original and oral literary and dramatic pieces.
[19] This amendment finds its genesis in Justice Krishna Iyer’s observation that the earlier provision was an “un-Indian feature.”[20] The rationale of principle of fixation is the requirement of certainty as to what the work is.
Another reason for it is to define the limits of copyright so that it does not extend to ideas or underlying information and its ability to be used as an evidence.
It is odd to consider, for instance, how "material form" has been construed from being something "capable of identification and having more or less permanent endurance" in Canadian Admiral to something "ephemeral" and incapable of being perceived in the Satellite Radio decision.
This would be in line with a supreme court decision where caches on an IP server were found to be copies made purely for technical reasons (to improve efficiency and utility) and therefore fell within a copyright exemption for telecommunication providers.
Fixation can also be easily understood when the nature of the work itself, implies a material form: a photograph or painting, for example.
On the other hand, fixation can be a slippery concept, particularly because it is not statutory required under the Canadian Copyright Act (R.S., 1985, c.C-42).
This favours the public interest in the sharing and dissemination of information at the expense of the creator or author receiving a just reward.
In the US, this tipping of the scales in favour of the public interest sits well with the general approach to copyright protection, the aim of which is constitutionally mandated as the "Progress of Science and Arts".