If it Ain’t Broke.... Copyright’s Fixation Requirement and Cultural Citizenship

40 Pages Posted: 13 Oct 2010 Last revised: 17 Aug 2011

Larisa Mann

University of California, Berkeley - Jurisprudence and Social Policy Program

Date Written: April 12, 2010

Abstract

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.

Keywords: Intellectual Property, Jazz, Music, Sociolegal Studies, Citizenship, Copyright

Suggested Citation

Mann, Larisa, If it Ain’t Broke.... Copyright’s Fixation Requirement and Cultural Citizenship (April 12, 2010). Columbia Journal of Law & the Arts, Vol. 34, p. 201, Winter, 2011. Available at SSRN: https://ssrn.com/abstract=1691266

Larisa Mann (Contact Author)

University of California, Berkeley - Jurisprudence and Social Policy Program ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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