A work can only attract copyright protection if it is “fixed” in some material form, meaning it must have some permanence. The fixation requirement is not merely evidential (it being difficult to prove the existence of an unfixed work), but is a necessary result of the doctrine that only expression of an idea can be copyrighted, but not the idea itself.
Section 3(1) of the Copyright Act states, inter alia:1
“copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever [emphasis added] […]
In Canada, the fixation requirement was established by Canadian Admiral Corporation Ltd v Rediffusion Inc,2 in which the Exchequer Court held that copyright did not subsist in the telecast of a live event such as a football game. The Court noted that because live events such as a sports match are not planned and are unpredictable, they are not “dramatic works” and there can be no copyright protection. Further, copyright applies only when there is “something definite and ascertainable to protect”, and the Court continued:
For copyright to subsist in a work, it must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance.
Thus, cable companies who rebroadcasted the sports match could not be liable for copyright infringement.
It is of interest that in the Canadian Admiral case, the live telecasts did not appear to be recorded prior to the defendants' rebroadcast of the matches, allowing them to escape liability. However, the Copyright Act was subsequently amended to provide such rights to telecasters under s. 3(1.1):
A work that is communicated in the manner described in paragraph (1)(f) [“in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication”] is fixed even if it is fixed simultaneously with its communication.3
This effectively overruled the holding in Canadian Admiral as it related specifically to broadcast rights, meaning that companies could not rebroadcast live streams without infringing copyright. This did not, however, remove the fixation requirement from copyright law.
In Gould Estate v Stoddart Publishing Co Ltd,4 the issue of fixation in conversations and interviews was raised. The plaintiff, the estate of famous pianist Glenn Gould, sued Jock Carroll, the author of a biographical book containing photographs and recollections of interviews with Gould, for copyright infringement and appropriation of personality. The trial judge dismissed both claims. On the issue of the conversations and interviews, the Court held that such spontaneous and unstructured comments could not be protected by copyright:
Here too, the nature of the interview, conducted in informal settings—at an empty Massey Hall, at the home of Gould’s mother and on vacation in the Bahamas—was such that it was intended to be casual, to catch the spontaneity of Gould when he was relaxing. The conversation between the two men was the kind that Gould would have with a friend. Indeed Gould and Carroll remained friends for a short while afterwards. Gould was not delivering a structured lecture or dictating to Carroll. Rather, Carroll engaged Gould in easygoing conversation out of which emerged comments which provided insights into Gould’s character and personal life. Gould was making offhand comments that he knew could find their way into the public domain. This is not the kind of discourse which the Copyright Act intended to protect.5
The Ontario Court of Appeal upheld the decision solely on the grounds of copyright law, noting that conversations or “oral utterances” could not be copyrighted.6