Is a work copyrighted on fixation or publication? What&#39;s the difference? How is it proved?
<p>This is in part a followup to <a href="https://law.stackexchange.com/questions/64470/can-a-so-small-as-to-be-reduced-to-a-dot-confer-any-legal-protection#comment135391_64494">this comment</a> in which a user wrote:</p>
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<p>“fixation” broadly depends on publication. How else d’you think fixation is established?</p>
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<p>In a later comment the same user wrote:</p>
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<p>In your context fixation is a fact, but it's also irrelevant. What matters is solely what can be proved, which is publication.</p>
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<p>Is that correct? Is a work copyrighted on fixation or publication? What's the difference? How is creation of a protected work proved in court? And what does &quot;fixation&quot; mean?</p>
<p>This is intended to be a multi-jurisdiction question.</p>

<p>US Law, specifically <a href="https://www.copyright.gov/title17/92chap1.html#102" rel="nofollow noreferrer">17 USC 102</a> says:</p>
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<p>(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.</p>
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<p>The <a href="https://wipolex.wipo.int/en/text/283698" rel="nofollow noreferrer">Berne Copyright Convention</a> (more formally the &quot;Berne Convention for the Protection of Literary and Artistic Works&quot;) says, in Article 2:</p>
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<p>(1) The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.</p>
<p>(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.</p>
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<p>Almost every country in the world adheres to the Berne Convention. According to the <a href="https://en.wikipedia.org/wiki/Berne_Convention" rel="nofollow noreferrer">Wikipedia article</a>:</p>
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<p>The Berne Convention ...  introduced the concept that a copyright exists the moment a work is &quot;fixed&quot;, rather than requiring registration ... Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration.</p>
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<h2>Fixation</h2>
<p>A work is &quot;fixed in some material form&quot; or &quot;fixed in any tangible medium of expression&quot; when a work is written down, or saved to a computer file, or recorded, or drawn, or set down in some other way. It can occur years before publication. This is known as &quot;fixation&quot;. Inventing a work in one's mind, reciting it aloud, or singing or performing it do not constitute fixation. Neither does a radio or TV broadcast, although recording of a broadcast does.</p>
<h2>Publication</h2>
<p>Under Article 3 Paragraph (3) of the Berne Convention:</p>
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<p>The expression “published works” means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.</p>
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<p>Under US law, specifically <a href="https://www.copyright.gov/title17/92chap1.html#101" rel="nofollow noreferrer">17 USC 101</a></p>
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<p>“Publication” is the distribution of copies or phonorecords of a work to the public by sale or 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.</p>
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<h2>History</h2>
<p>Prior to the Berne Convention, copyright was generally created only when a work was registered with the appropriate office for the nation where it was sought to be protested, or in some countries, only when it was published. In the US for example, federal copyright did not apply to unpublished works under the 1909 Copyright Act. More limited state laws provided a degree of protection instead.</p>
<p>Originally, copyright had been created in England to benefit the printer or publisher, not the author, and was only available to works officially registered.  Similar laws were established in other countries, with generally similar provisions. Such laws often gave little or no protection to works first published in a different country. Eventually international agreements provided protection for copyrights outside their countries of origin, and the Berne Convention, the most successful such agreement, had emphasized protection of all works from fixation from its first version in 1888.</p>
<p>In <a href="https://www.copyright.gov/history/studies/study29.pdf" rel="nofollow noreferrer">&quot;Protection of Unpublished Works&quot;</a> by William: S. Strauss (1959, number 29 in the series of studies prepared for the US, Librarian of Congress as directed by Congress with an eye to revision of the US copyright law) it is said (on page 2):</p>
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<p>In earlier days when the public dissemination of copyrightable works usually meant the reproduction and distribution of copies, it may have been logical and practical to define publication in those terms, to protect unpublished manuscripts against unauthorized publication under the established common law, and to limit the copyright statute to published works. Today, when copyrightable works are disseminated widely by public performance to audiences of millions over radio and television and by sound recordings and audiovisual films, the dichotomy of common law and statutory copyright based on the historic concept of publication may be thought to be outmoded.</p>
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<h2>Proof of Fixation</h2>
<p>When there is a suit for copyright infringement, copies of the work will normally be entered in evidence. This will prove that the work has been fixed.  Most often there is no need to prove the date of fixation, as this is usually not disputed. But when it is relevant and in dispute, the date of fixation can be proven in various ways. A witness can testify to seeing a fixed copy on a particular date. The author can testify about fixing the work. When a work is saved to a computer file or in an electronic format, it will usually have an associated timestamp. This is not secure, but provides a degree of evidence. The physical age of writing can often be determined by lab tests for written works. A copy of a work can be mailed, with the postmark providing a reliable date. And in those countries (such as the US) that provide copyright registration, a work can be and often is registered before publication.</p>
<h2>Infringement of Unpublished Works</h2>
<p>Unpublished works have been held protected against infringement, and fair-use defenses denied is such cases as:</p>
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<li><a href="https://supreme.justia.com/cases/federal/us/471/539/" rel="nofollow noreferrer"><em>Harper &amp; Row v. Nation Enterprises</em>, 471 U.S. 539 (1985)</a></li>
<li><em>Salinger v. Random House, Inc</em>. 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987).</li>
<li><em>New Era Publications International v. Henry Holt &amp; Co.</em>, 873 F.2d 576 (2d Cir. 1989), cert. denied, 110 S. Ct. 1168 (1990).</li>
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<p>In general, US courts at least have protected unpublished works more strictly than published ones, and have been less willing to permit fair use defenses.</p>

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