Is a work copyrighted on fixation or publication? What&#39;s the difference? How is it proved? This is in part a followup to this comment in which a user wrote: “fixation” broadly depends on publication. How else d’you think fixation is established? In a later comment the same user wrote: In your context fixation is a fact, but it's also irrelevant. What matters is solely what can be proved, which is publication. 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? This is intended to be a multi-jurisdiction question.
US Law, specifically 17 USC 102 says: (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. The Berne Copyright Convention (more formally the &quot;Berne Convention for the Protection of Literary and Artistic Works&quot;) says, in Article 2: (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. (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. Almost every country in the world adheres to the Berne Convention. According to the Wikipedia article: 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. Fixation 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. Publication Under Article 3 Paragraph (3) of the Berne Convention: 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. Under US law, specifically 17 USC 101 “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. History 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. 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. In &quot;Protection of Unpublished Works&quot; 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): 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. Proof of Fixation 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. Infringement of Unpublished Works Unpublished works have been held protected against infringement, and fair-use defenses denied is such cases as: Harper &amp; Row v. Nation Enterprises, 471 U.S. 539 (1985) Salinger v. Random House, Inc. 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987). New Era Publications International v. Henry Holt &amp; Co., 873 F.2d 576 (2d Cir. 1989), cert. denied, 110 S. Ct. 1168 (1990). 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.
Often, but not always If the speech is &quot;fixed in a tangible medium&quot; it is protected by copyright. That includes a prepared written version, and an audio recording made as the speech is delivered. Note that fixation only counts if it is done &quot;by or under the authority of the author&quot;. Someone else recording or writing down the speech does not make it fixed unless the author has directed that this be done, or at least authorized it. However, if the speech is neither written down, nor recorded, nor in any other way &quot;fixed&quot; then it is not protected until it is fixed. Someone who took notes or simply memorized the speech would be free to use it as long as it is not protected. All the above is true in the US, and in all other countries that adhere to the Berne Copyright Convention or the TRIPS Agreement. Almost all countries adhere to one or both of those. In many cases there is an exception to copyright for news reporting, but not always. In the US this is covered under fair use and is subject to the normal four-factor test for fair use. In the UK this is covered by fair dealing. In many countries there is a specific exception for news reporting, but such exceptions generally have limits, and the individual law's terms will matter. US Law on Fixation 17 USC 101 provides that: A work is “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. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
Broadly speaking, the difference is the "sharealike" clause of CC-BY-SA. Any derivative of a CC-BY-SA work must itself be licensed CC-BY-SA, whereas a derivative of an "MIT with attribution" work can be under any license the author wants. There are a number of other differences in the fine print (eg. CC forbids DRM, where MIT doesn't), but that's the big one.
Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe.
There are jurisdictions that do not allow authors to place their work in the public domain, such as Germany. Main reason is the strict monistic approach the German copyright law bases on. Key feature of this approach is the concept that, in principle, the copyright/author’s right itself can neither be transferred to another person nor waived by the author herself. The German author’s right consists of two parts, the moral rights and the exploitation rights. The moral rights are – as a rule – personal rights that are bound to the person of the creator (or, after her death, her legal heirs), i.e. they can neither be transferred nor waived. Since moral and exploitation rights are considered as inseparable parts of the author’s right as a whole (monistic approach) the exploitation rights cannot – in principle – transferred or waived by contract as well. CC0 is supposed to get you as close to the public domain as possible in your legal system. CC0 helps solve this problem by giving creators a way to waive all their copyright and related rights in their works to the fullest extent allowed by law. CC0 is a universal instrument that is not adapted to the laws of any particular legal jurisdiction, similar to many open source software licenses.
The author, or the copyright holder if the author has sold or assigned the copyright, may register a copyright at any time, even many years after the work was copyrighted. However, for all modern works (since 1978 in the US) the work has copyright protection as soon as it is created and set down in a tangible form (such as on paper or in a computer file), whether it is registered or not. Registration cannot gain or lose copyright protection. It is evidence of the copyright, and it provides some additional rights if an infringement suit should occur. If there are multiple co-authors, one author should ideally register on behalf of all of them, listing all co-authors, but multiple registrations will do no major harm. No one who is not an author or copyright holder of a work (or a valid authorized agent of the author or copyright holder) may legitimately register a copyright in that work. Registration procedures and the exact benefits of registration vary by country. In fact, some countries do not have any copyright registration. Edit: In the US, registration procedures are described in Circular #2 from the Copyright Office. Falsely registering a copyright is a crime under 17 U.S.C. § 506(e), and could be reported to law enforcement. See also Wikipedia's article on "Copyfraud". If a false registration has been made, the true author can file a conflicting registration. This should be sufficient to allow a copyright infringement case to be filed. It would be very wise to consult a lawyer with experience in copyright infringement issues before taking steps in the matter. Second Edit: It is one of the elements of an infringement claim that the plaintiff owns the copyright, or has been authorized by one who does. often this is not disputed, and is passed by with no significant time or effort. But if a false copyright registration has been made, in which a person who was not the author claims to be the author, then evidence clearly establishing the actual authorship will probably be needed if the case goes to court. A registration establishes a rebuttable presumption that the person who registered the copyright owns it, and this presumption would need to be overcome.
Not very novel What you are talking about is a derivative work. This is arguably the most famous example: It's an interesting example because Leonardo da Vinci did not have copyright in the original but Marcel Duchamp and Francis Picabia do have copyright in the derivative. Even though the changes are physically small, they are enough. A crucial factor in current legal analysis of derivative works is transformativeness, largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc. The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the parody of "Oh, Pretty Woman" involved in the Campbell case. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is. For an author to have copyright in the derivative they must: Meet the (low) threshold of originality for copyright to exist. Make their derivative lawfully - either because they have permission or because their use falls under an exception to copyright like fair use or fair dealing. However, they do not have copyright in the original elements. For example, I could take the Mona Lisa and give her different clothes, a different background or a hat I will not be infringing their copyright. If I give her a different style of moustache? However, there is an issue with "I have copyright on the contents of the post" when you don't. Even if your work is derivative, you do not have copyright in the original parts and do not have the right to licence them. So, for example, this post is a derivative work of the Wikipedia page linked to above and I have copyright in my original contributions because: They meet the threshold of originality I have permission to make the derivative either through the Wikipedia licence or because my use is fair use. I can give Stack Exchange a licence for my work but I cannot give them a licence for the original work including, for example, the image and quote above. So, someone could quote my entire answer subject to the licence or fair work, but they couldn't copy just the image or quote.
Unless the work has entered the public domain (after the copyright expires, or if a copyright notice or renewal was omitted when these were required, or in other ways) there is always an owner of the copyright. If the copyright was retained by the author, who has died, than the author's heir(s) own it. (If there are no other heirs, it becomes the property of the state. This is known as escheating.) If the author has sold or assigned the copyright (say to a publisher) then the buyer or assignee owns it. If the owner is a business that has ceased to operate, but has not sold the copyright, then the shareholders or proprietor has the right to sell or license it (technically the business still owns it). If the business goes through legal bankruptcy, the copyright would be sold, possibly as a part of "and all its other assets and good will", or else would escheat to the state. It can be hard to find the copyright to a work long unpublished. The original author may have died, and the author's heirs may be hard to track. The copyright may have been sold, and the sale may not have been properly recorded. In the US, the Copyright Office maintains records that try to identify the copyright owner of all registered copyrights. The office will search these, for a fee, but there is not always a correct or useful answer. Under current US law, if one cannot find the correct owner of a copyright, and secure permission to use it, one is simply out of luck (except for musing, where a compulsory license is available for some uses at a government-specified fee). Any use is then infringement (unless it is a fair use) and the owner could always turn up and sue. The term "orphan works" has been applied to works whose copyright owner is unknown and hard to find. The same term is also applied to works whose copyright holder is known, but which are long out of print and unlikely to be reprinted, particularly when there is no paying market for them. In the US, there have been several proposals for dealing with "orphan works" by granting a compulsory licensee for them, or by declaring them to be in the public domain, or by taxing them and declaring them to be PD if he tax goes unpaid. None of these have been passed into law in the US, nor have similar proposals been made law in any other country that I know of. (declaring Orphan works PD might cause a problem under the Berne Convention.) To be honest, as there is little economic value in orphan works, no one will spend much money or energy in lobbying for such a law, and the industries that make their money via copyright (music and film in particular) are often suspicious of and automatically oppose anything that weakens copyright in any way, or seems to. In any case, no such law has yet passed. (Edit I now learn that Canada and the EU have laws giving access to orphan works under some circumstances, and other countries may have such laws.) It is true that the owner of the copyright on an orphan work may well be unlikely to sue for infringement of that copyright. The owner may not even know that s/he owns the copyright. But a user could never by fully safe, because the owner (or a new owner after a transfer) could always choose to sue for any continuing infringement, and any past one if the statute of limitations has not run out. This answer is largely based on knowledge of US law, but I believe that this situation is basically the same in most countries.