If it Ain’t Broke.... Copyright’s Fixation Requirement and Cultural Citizenship
University of California, Berkeley - Jurisprudence and Social Policy Program
April 12, 2010
Columbia Journal of Law & the Arts, Vol. 34, p. 201, Winter, 2011
Copyright subsists in creative works that are “fixed in any tangible medium of expression,” usually understood as making fixation a prerequisite for protection. However, some argue that denying copyright to unfixed works unfairly denies protection to certain classes of artists or works, and that fairness, or concern for those classes of artists or genres, requires that they receive the benefit of copyright ownership for those unfixed works. These arguments generally assume the benefits of copyright protection to the artist, and often by unexamined extension to society. However, copyright ownership has social costs as well as social benefits. This paper examines the possible costs of applying copyright protection to unfixed works, in the context of the specific artists, traditions, genres, and practices that rely mainly on unfixed works. It argues for a deeper, more empirically grounded understanding of the creative process and a broader definition of values that arise from culture-making, and thus a broader understand of the public policy implications in copyright law.
Number of Pages in PDF File: 40
Keywords: Intellectual Property, Jazz, Music, Sociolegal Studies, Citizenship, CopyrightAccepted Paper Series
Date posted: October 13, 2010 ; Last revised: August 17, 2011
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