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The question of whether interactive works are fixed (given the user's ability to constantly alter the

sequence

of the "action") has been resolved by the courts in the context of video games and should not present a new issue in the context of the NII. Such works are generally considered sufficiently fixed to qualify for protection. The sufficiency of the fixation of works transmitted via the NII, however, where no copy or phonorecord has been made prior to the transmission, may not be so clear.

A transmission, in and of itself, is not a fixation. While a transmission may result in a fixation, a work is not fixed by virtue of the transmission alone. Therefore, "live" transmissions via the NII will not meet the fixation requirement, and will be unprotected by the Copyright Act, unless the work is being fixed at the same time as it is being transmitted. The Copyright Act provides that a work "consisting of sounds, images, or both, that are being transmitted" meets the fixation requirement "if a fixation of the work is being made simultaneously with its transmission."64 To obtain protection for a work under this "simultaneous fixation" provision, the simultaneous fixation of the transmitted work must itself qualify as a sufficient fixation.

1982) (putting work in "memory devices" of a computer "satisf[ies) the statutory requirement of a 'copy' in which the work is 'fixed'").

62

See, e.g., Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989).

63

Unfixed broadcasts are not within the subject matter of Federal copyright law. Therefore, protection of such works is not preempted and may be provided by state statutory or common law. See 17 U.S.C. $ 301 (1988 & Supp. V 1993).

64

See 17 U.S.C. § 101 (1988) (definition of "fixed"); see also Baltimore Orioles, Inc. v. Major League Baseball Players Assoc., 805 F.2d 663, 668 (7th Cir. 1986) (telecasts that are videotaped at the same time that they are broadcast are fixed in tangible form), cert. denied, 480 U.S. 941 (1987); National Football League v. McBee & Bruno's, Inc., 792 F.2d 726, 731-32 (8th Cir. 1986) ("the legislative history [of the Copyright Act] demonstrates a clear intent on the part of Congress to resolve, through the definition of 'fixation'..., the status of live broadcasts, using -- coincidentally but not insignificantly -- the example of a live football game"). It is understood that the "fixation" must be made or authorized by the author.

A simultaneous fixation (or any other fixation) meets the requirements if 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."65 Works are not sufficiently fixed if they are "purely evanescent or transient" in nature, "such as those projected briefly on a screen, shown electronically on a television or cathode ray tube, or captured momentarily in the 'memory' of a computer. Electronic network transmissions from one computer to another, such as e-mail, may only reside on each computer in RAM (random access memory), but that has been found to be sufficient fixation.“

1166

67

b. PUBLISHED AND UNPUBLISHED WORKS

Historically, the concept of publication has been a major underpinning of copyright law. Under the dual system of protection which existed until the 1976 Copyright Act took effect, unpublished works were generally protected under state law. Published works, on the other hand, were protected under Federal copyright law. On the effective date of the 1976 Act, Federal copyright protection became

65

17 U.S.C. S 101 (1988) (definition of "fixed").

66

HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67.

67

See Advanced Computer Services of Michigan Inc. v. MAI Systems Corp., 845 F. Supp. 356, 363 (E.D. Va. 1994) (conclusion that program stored only in RAM is sufficiently fixed is confirmed, not refuted, by argument that it "disappears from RAM the instant the computer is turned off'; if power remains on (and the work remains in RAM) for only seconds or fractions of a second, "the resulting RAM representation of the program arguably would be too ephemeral to be considered 'fixed'"); Triad Systems Corp. v. Southeastern Express Co., 1994 U.S. Dist. LEXIS 5390, at *15-19 (N.D. Cal. March 18, 1994) (“[C]opyright law is not so much concerned with the temporal duration of a copy as it is with what that copy does, and what it is capable of doing, while it exists. 'Transitory duration' is a relative term that must be interpreted and applied in context.”).

68

See Wheaton v. Peters, 33 U.S. (1 Peters) 591, 662-63 (1834).

available for unpublished as well as published works. The concept of publication thus lost its "all-embracing importance" as the threshold to Federal statutory protection.

However, while the importance of publication has been reduced through amendment to the law (e.g., granting Federal protection to unpublished works and removing the notice requirement for published works), the status of a work as either published or unpublished still has significance under the Copyright Act. For example:

only works that are published in the United States are subject to mandatory deposit in the Library of

Congress; • deposit requirements for registration with the

Copyright Office differ depending on whether a work is published or unpublished;?

71

69

See 17 U.S.C. S 104 (1988 & Supp. V 1993). Prior to 1978, certain unpublished works, particularly dramatic works and musical compositions, could obtain Federal copyright protection through registration with the Copyright Office. Since 1978, all otherwise eligible unpublished works are protected under Federal law. See 17 U.S.C. S 104(a) (1988 & Supp. V 1993).

70

HOUSE REPORT at 129, reprinted in 1976 U.S.C.C.A.N. 5745. 71

17 U.S.C. $ 407 (1988). "[T]he owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of publication -- (1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with such phonorecords." 17 U.S.C. S 407(a) (1988). The deposit requirements are not conditions of copyright protection, but failure to deposit copies of a published work may subject the copyright owner to significant fines. See 17 U.S.C. S 407(a), (d) (1988).

See 17 U.S.C. S 408(b) (1988) ("the material deposited for registration shall include (1) in the case of an unpublished work, one complete copy or phonorecord; (2) in the case of a published work, two complete copies or phonorecords of the best edition; (3) in the case of a work first published outside the United States, one complete copy or phonorecord as so published; (4) in the case of a contribution to a collective work, one complete copy or phonorecord of the best edition of the collective work").

72

the scope of the fair use defense may be narrower
for unpublished works;73
unpublished works are eligible for protection
without regard to the nationality or domicile of the
author;74

published works must bear a copyright notice if published before March 1, 1989;"s and

certain limitations on the exclusive rights of a copyright owner are applicable only to published

works.

The Copyright Act provides a definition of "publication" to draw the line between published and unpublished works:

"Publication" is the distribution of copies or
phonorecords of a work to the public by sale or

73

The first factor of the fair use analysis the nature of the copyrighted work -- generally weighs against a finding of fair use if the work is unpublished. See Harper & Row, supra note 34. In 1992, Congress was prompted to amend Section 107 by the near determinative weight courts were giving to the unpublished nature of a work. See Act of October 24, 1992, Pub. L. 102-492, 1992 U.S.C.C.A.N. (106 Stat.) 3145 (adding to the fair use provisions, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.").

74

17 U.S.C. S 104(a) (1988 & Supp. V 1993); HOUSE REPORT at 58, reprinted in 1976 U.S.C.C.A.N. 5671 (Section 104(a) "imposes no qualification of nationality and domicile with respect to unpublished works"); see also 17 U.S.C. S 104(b) (1988 & Supp. V 1993) (national origin requirements for published works).

75

17 U.S.C. S 405 (1988 & Supp. V 1993). For such works, failure to include a copyright notice risks total loss of copyright protection. See id. Works published after March 1, 1989 (the effective date of the Berne Implementation Act) may (but are not required to) bear a copyright notice identifying the year of publication and the name of the copyright owner. See 17 U.S.C. S 401 (1988 & Supp. V 1993).

76

See generally 17 U.S.C. SS 107 - 120 (1988 & Supp. V 1993). See, e.g., 17 U.S.C. S 118 (1988 & Supp. V 1993) (compulsory license is available for the use of certain published works in connection with noncommercial broadcasting).

other transfer of ownership, or by rental, lease, or
lending. The offering to distribute copies or
phonorecords to a group of persons for purposes
of further distribution, public performance, or
public display, constitutes publication. A public
performance or display of a work does not of

itself constitute publication." The definition uses the language of Section 106 describing the exclusive right of distribution, and was intended to make clear that "any form of dissemination in which a material object does not change hands -- performances or displays on television, for example is not a publication no matter how many people are exposed to the work."78 It also makes clear that the distribution must be "to the public. In general, the definition continues principles that had evolved through case law under previous copyright laws, including the doctrine of limited publication. The doctrine was developed by courts to save works from losing copyright protection when copies of the work were only distributed to

77

17 U.S.C. S 101 (1988) (definition of "publication").

78

See HOUSE REPORT at 138, reprinted in 1976 U.S.C.C.A.N. 5754. See also discussion of transmissions and the "distribution" of copies infra pp. 67-69, 217-20.

79

See, e.g., Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), supplemented, reb'g denied, 818 F.2d 252, cert. denied, 484 U.S. 890 (1987) (copyrighted letters did not lose unpublished status by placement in library); WPOW, Inc. v. MRLJ Enterprises, 584 F. Supp. 132 (D.D.C. 1984) (filing of work with federal agency did not constitute publication).

80

See 1 M. NIMMER & D. NIMMER, NIMMER ON COPYRIGHT S 4.04 (1994) (hereinafter NIMMER ON COPYRIGHT). In a couple of aspects, the concept of publication was broadened to include the authorization of offers to distribute copies in a commercial setting and the distribution to certain middlemen, such as retailers, motion picture exhibitors and television stations. See Paramount Pictures Corp. v. Rubinowitz, 217 U.S.P.Q. 48, 50 (E.D.N.Y. 1981) (discussing evolution of definition of publication); National Broadcasting Co., Inc. v. Sonneborn, 630 F. Supp. 524, 532-33 (D. Conn. 1985). 81

See 1 NIMMER ON COPYRIGHT S 4.13[B); Kunycia v. Melville Realty Co. Inc., 755 F. Supp. 566, 574 (S.D.N.Y. 1990).

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