A fundamental understanding of copyright law is the understanding of works that are “fixed in any tangible meaning of expression.”
It’s at the core of the legal rights behind any original work, and without a tangible medium then copyright doesn’t exist. In fact, it’s the most basic requirement of any original work, but how does it work in the context of internet created works?
The age of the internet
It’s simple enough to understand something ‘tangible’ when discussing CDs, books, DVDs or paintings, but it gets less clear when thinking about blogs, social media content or streaming services.
These days, most of the content people consume regularly isn’t physically there – it can’t be touched. And, as the dictionary definition of the word ‘tangible’ is “capable of being perceived, especially by the sense of touch”, does it complicate the copyright law?
Perhaps unsurprisingly, like many aspects of the law, the dictionary definition doesn’t have much impact. We need to look more closely at the legal definition to make sense of it.
The law’s definition of tangible
The copyright law states that a work must be ‘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.
There are various components that must be in place before a work can be considered to meet these requirements. These include:
- Author authority:
The recording must be done by the author, or with the permission of the author. If someone records a concert with no author permission, then it can’t count as being fixed. While the person would have copyright for the video, the performers won’t have fixed it for the purpose of copyright.
- Permanence:
The work must be saved in a permanent way in order that it can be communicated to someone else at a later date. If the original work only exists in the moment in time that it is transmitted or communicated, then it isn’t fixed.
- May be fixed while being transmitted:
If the work is fixed while it’s being transmitted, for example, recording a live TV piece while it goes out on air, it does count as being fixed in law.
The element of permanence
This is the key element of defining a work as ‘tangible’. Whether you can touch the copyrighted work or not, if it is permanently stored in a medium that can be copied, accessed or transmitted, then it’s considered to be fixed into a tangible medium.
This allows a law that was originally written for books and physical forms of music, works for internet created work. Saving a work to a hard drive, whether as part of the cloud or your own
All about the permanence
Simply put, when it comes to tangibility within copyright law, it’s not really about being able to touch a piece of work. It’s about the permanence and the ability to perceive the work.
If it’s created in a medium that means the work can be taken to be shown to someone in a different place and time, then it counts as ‘tangible’ in the law. Just because something isn’t physically able to be touched, doesn’t mean it’s not covered by copyright law.
Copyright is about the creativity and the expression of that creativity – not what can be held in your hands.
About Dawn Ellmore Employment
Dawn Ellmore Employment was incorporated in 1995 and is a market leader in intellectual property and legal recruitment.
