Trends in Copyrightability of the Spoken Word

“But why is there no property in ideas uttered in conversation, and in spoken words, while there is property in ideas and words when they come in a book? A brilliant talker may very well have the instinct of ownership in his good sayings, and all the more if he must and can only talk them and not write them.”

Matthew Arnold [1]

Quotations have always been in vogue, and it has never been clearer than it is today that speech is as much a profitable commodity as anything else. The number of challenges to newspapers in recent years over alleged misquotations, sole proprietary rights in interviews, and the like have increased manifold with the likes of Lord Denning, Pamella Bordes, Marina Ogilvy, Shania Twain, Francis Bacon, Ernest Hemingway, Igor Stravinsky, Glen Gould and even Micheal Jackson having been involved. [2] One’s speech is the first form of one’s individual expression. With growing consumerism which feeds intrusion of the privacy of those even remotely in the public eye, it has become essential that the limits of proprietorship be set. There is a need to balance the rights of speakers when they make public speeches, participate as narrators for works of oral history, seek to protect privacy and participate in interviews. Those who wish to copy relevant, news worthy or otherwise controversial experts from speech of others would gain an unfair commercial advantage, if allowed to reap the benefits of someone else’s intellect and labor. If Peterson’s J opinion is to be followed then since speech is worth copying, it must be worth protecting. [3]

This paper seeks to understand the reasons behind unequal treatment given to the written word over the spoken word and examine whether these reasons are consistent with the overarching aims of copyright law. It challenges the assumption that something oral is not worth protecting; a striking example could be Mozart, who composed music in his head, without writing it down.

Chapter 1

The first publicized instance of anyone directly claiming copyright in their speech was perhaps that of Lord Denning threatening a publishing house in the 1990 with misquoting him in an interview. [4] He reportedly said ‘what I said is my copyright and the use of the words was prohibited by me except in so far as I approved it’. [5] However, the path of inclusion of speech in recognized subject matter for copyright has hardly been that simplistic. This is primarily because mere speech, which is not ‘fixed’ in any tangible form falls short of technical requirement of copyright law. This chapter explores the hurdles crossed position of common law jurisdictions over extension of copyright to speech.

1.1 Protection of speech UK

The United Kingdom has seen a series of copyright legislations, which have continually modified the parameters of eligibility for copyright protection. The first legislation on copyright, statute of Anne abolished common law copyright in published works while the common law copyright law in unpublished works was only abolished expressly after the 1911 statute. The requirement of reduction to material form has been a general requirement since statute of Anne. However some exemptions have been made in for some kinds of oral works. ‘Lectures’ were exempted from such a requirement under the 1911 statute while the Lectures Copyright Act 1835 created a similar exemption before that. Yet the status of unfixed works not covered under the definition of lectures remained uncertain. Further the 1956 legislation removed all such exceptions for lectures and returned to some extent to the pre statutory status.

Walter v. Lane [6] , a case under the Copyright Act of 1842, tried to resolve to some extent the issue of copyrightability of the spoken word. Public speeches were delivered by Lord Rosebery amidst a gathering of reporters, were reported verbatim in The Times newspaper. [7] The case arose not at Lord Rosebery’s behest but when the speeches reported in Times Newspaper were compiled and published in a book, Appreciations and Addresses delivered by Lord Rosebery, by the defendants. Times initiated infringement proceedings. It is interesting to note that not only was Lord Rosebery not a party, no interests were claimed as arising through him by either side. The issues raised hence sidelined the questions of possibility of Lord Rosebery’s right in speech implicitly. The Lords found in favor of Times, fortifying the right of the reporter in his expression of the speech, since he was the first person to ‘fix’ the work. Justice North, at the court of first instance, by the way of obiter explicitly denied the speaker’s rights. He stated:

“The speaker, of course, has no copyright in the matter; copyright is the right to multiply copies of some original, and there is no original here in respect of which he could have held any copyright.” [8]

The Court of Appeal arrived at a similar conclusion. Under the governing act copyright was conferred on ‘authors’ of ‘books’ and Lord Rosebery’s speech did not fall within such a category. The court re-emphasized the importance of fixation when it opined that Lord Rosebery “could have acquired copyright in it by putting it into writing”. [9] It, however, overturned the ruling of North J on separate grounds recognizing that the speech noted down and reproduced by the reporter did not originate from him. The court found normal reporting to not be included within the terms of ‘author’. [10] The court affirmed that the speech originated from the speaker and the reporter only “reproduced to the best of his ability not only the ideas expressed by the speaker, but the language in which the speaker expressed those ideas.” In conclusion ‘no rights whatsoever subsisted in the lectures as literary works’. [11]

House of Lords agreed with the Court of Appeal that in the absence of fixation no copyright subsisted in the speech in Lord Rosebery’s favour. However, identifying the ‘expression’ of the reporter as distinct from Lord Rosebery’s not in terms of high creativity standards but in terms of originating from the reporter, they concluded that the reporter was indeed the ‘author’ of the published news item. The Lords did not consider the job of the reporter as a mere mechanical job of taking down dictation but one which involved skill. [12] By virtue of the House of Lords judgment the copyright in speech vested in the agent who first reduced it to writing. In many ways this case made the procedural requirement of fixation the ‘be all and it all’ for copyright. [13] The absurdity of such a conclusion is best enunciated in Lord Robertson’s dissent:

“…if the owner of a phonograph publishes the speech as taken down by the phonograph he is the author of the report and entitled to copyright.” [14]

Walter v. Lane is still considered a good precedent in law, even though the then governing Act was replaced by 1911 Copyright Act, materially. [15] It has been followed in Express Newspapers v News [16] and Sawkins v Hyperion Records Ltd [17] , most notably.

In the years succeeding Walter v. Lane several copyright legislations were enacted and repealed. The final position, prior to the current copyright act of UK was enforced, was summed up by the 1977 Whitford Copyright Committee, which reported that:

“Speeches and lectures delivered extempore do not acquire copyright unless and until fixed… We think it would be right to make it clear that, as and when [speeches and lectures are] fixed, albeit by someone else, a copyright in the material should be created which will vest in the speaker.”

Further, the Committee recommended that there ought also to be: a separate copyright in the recording or transcript as such, whether or not made with the consent of the speaker, such copyright to vest in the maker of the recorded version.

Some commentators take this conclusion of the Committee to mean a rejection of Walter v. Lane. [18] However, it must be remembered, that the report did underline the requirement of fixation.

Consistent with the recommendations of the Whitford Committee the Copyright Act, 1988 defines, “literary work” as “any work, other than a dramatic or musical work, which is written, spoken or sung”. The role of fixation is well entrenched in § 3(2) which states that:

“Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.”

It also impliedly allows for the possibility of existence of two distinct copyrights, the second one in the ‘record as distinct from the work recorded.’ [19] This is because the language of the § is inconclusive and leaves scope for interpretation.

The question of whether the reporter does or should get a copyright in the reported text is a question distinct from question of whether there is any copyright is speech and would not be addressed here. It may only be relevant in case it were to preclude the possibility of excluding copyright in speech; however that does not appear to be the case. [20]

Position in the United States

Unlike England the US federal statutory law does not preclude the possibility of common law copyright protection. Infact, most claims of copyright in speech are made through that channel since the states have discretion to waive the requirement of fixation. [21] However, that is beyond the scope of this comparative study.

Copyright Act 1976, the governing legislation in the United States also recognizes the necessity of fixation for recognition of copyright. Copyright is said to exist in works ‘fixed in any tangible medium of expression’ [22] . § 101, of the US Copyright Act considers a work being ‘fixed’:

“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 for a period of more than transitory duration.” [23]

Importantly, unlike the position in England, the author’s consent to the reduction to a material form is essential without which oral work remains not “fixed in any tangible means of expression”, and therefore outside statutory copyright protection. [24]

District Court in Rokeach v AVCO Embassy Pictures (where a psychiatrist published a book containing statements spoken by his psychiatric patients, and then claimed infringement for their reproduction in the defendants’ plays and motion picture) denied existence of copyright for the plaintiff for he was not the author or origin of quotes under dispute. Further Craft v Kobler held that where a speaker’s words are transcribed by another, for the purposes of the 1976 Act the speaker is the author of those words. [25] US Copyright office practice manual too affirms confirms such an interpretation. [26]

Therefore the moment something is fixed with authority of the speaker, copyright subsists in the words of the speaker. [27]

Therefore the position in US and UK is best explained through a dual copyright model, where ‘reduction to a material form is a necessary condition for the recognition of one’s incorporeal right.’

Chapter 2

The Indian Copyright Act, 1957 like its English counterpart excludes the possibility of a common law copyright in favor of a statutory one. [28] The Act also post the recent 1994 amendment recognizes a separate protection for lectures as “performance rights.” [29] It is interesting to note that the Act unlike US, UK legislations does not expressly mandate a fixation requirement statutorily in works other than ‘dramatic works.’ This might be because of a presumption that literary and other works necessarily need a medium to be fixed on, to exist. However, there is also a possibility that because of such an omission would allow unfixed work such as speeches to be included within the definition of literary work for the Berne Convention makes room for that possibility. [30] Therefore there seem to be two possibilities of extending protection to the spoken word under the existing copyright law, either as post fixation, akin to the position in UK, or as a performance right.

Since the Act succinctly defines ‘lectures’ as only spoken works of a more formal or considered kind delivered before or to an audience, the possibility to include a more spontaneous speech such as words uttered by an interviewee during an interview, could exist only within literary work which is not defined as precisely. In fact the Act does not define literary work other than as inclusive of computer programs. [31] The Berne Convention in Article 2(1) that every production in the literary, scientific and artistic domain is covered by copyright, whatever might be the mode or form of its expression, and gives a non-exhaustive list of examples which includes such basically oral works as ‘lectures, addresses, sermons.’ [32] Therefore it is open to countries to add to the non exhaustive list a non-formal form of speech. [33] Such an addition would fit perfectly within the scheme of the act as an author is defined as someone who causes the work to be created, as opposed to the ‘writer’ for a literary work, the singer for a song etc. [34]

Therefore in order determine if such an extension of copyright to non-formal speech though possible is desired a comparative assessment of respective baskets of rights available to owners of copyright in literary works and to performers becomes necessary, as does, an examination of the necessity of fixation as a requirement in light of underlying objectives of copyright law.

2.1 Performer’s right v. Copyright in literary work

It is relevant to point out that performers’ rights are distinct from copyright. The Delhi Court has opined ‘the performance itself is protected as a performer’s right which, although similar, is not identical to copyright.’ [35] Moreover, § 13 and 14 of the Copyright Act, make it clear that copyright will subsist only in work. [36] ‘Work’ as defined in § does not include ‘lectures’ or any other form of speech.

As per § 14 copyright in case of a literary work means the exclusive right, to or authorize someone to reproduce in any material including storing in an electronic medium, issue copies to the public, perform in public, make cinematographic film or sound recording, translate or adapt. The term of copyright in published literary, dramatic, musical and artistic works as per § 22 is lifetime plus 60 years.

Chapter VII, § 38 and 39 delineate the ‘special’ rights of performers under the Act. [37] The term of a subsistence of a performers’ right is much shorter than a copyright, it subsists for a mere 50 years from the date of the performance. [38] During the subsistence of the performer’s consent must mandatorily be sought for making or reproducing sound recording or visual recording of the performance, broadcasting the performance or communicating the performance to the public otherwise than by broadcast. However ‘once performances of any kind, visual or vocal, are recorded, broadcasted or communicated with the permission of the performer, his rights over the performance cease to exist.’ [39] All rights vest in the owner/author/director of the recording, broadcast or communication. No performance can however be recorded, broadcasted or communicated without the performer’s consent; [40] else it would amount to infringement as was adjudged by the Delhi High court in Neha Bhasin v. Anand Raj Anand and Anr. [41] and Super Cassette Industries Limited v. Bathla Cassette Industries Pvt. Limited. [42] If however, the speaker were to have a copyright in his speech, allowing exploitation of his work would not extinguish all his rights over his work, it would merely be a case of licensing or at most a case of exclusive licensing.

It is also conceptually incorrect to afford protection to impromptu speech under performers’ rights since they are a part of allied rights. Such related rights differ from copyright in that they belong to owners regarded as intermediaries in the production, recording or diffusion of works. ‘The link with copyright is due to the fact that the related rights owners are auxiliaries in the intellectual creation process since they lend their assistance to authors in the communication of the latter’s works to the public.’ [43] A musician performs a musical work written by the composer; an actor performs a role in a play written by a playwright etc. While in the case of speech the speaker is the true and sole author of the expression.

Relevance of fixation for copyright

The origin of copyright law was for the protection of published books, the presumption that copyright must therefore protect tangible expression of the intangible intellectual product has continued till the modern day. The requirement of reducing to material form is based however on a variety of reasons. [44] The most predominant justification for fixation is an evidentiary justification, the presumption that materiality is essential to the determination of the identity of a thing. Such identification is the ‘key factor that affects the ability of the court to verify the validity the plaintiff’s claim’ [45] by ascertaining the exact content of the work under consideration. The fixation also serves as a ready reference for third parties, who in absence of clear demarcations might unintentionally infringe copyright. [46] Furthermore some argue that one of the aims of copyright law being promotion of creativity the ultimate aim of which is to enrich the society would only be served if the society is exposed to the work and interacts with it, which can only happen if it were to be recorded in a tangible form. One or more of these reasons have contributed to the general notion that fixation being a prerequisite for copyright protection, common to the United States, the UK, Canada, as well as other jurisdictions.

The most basic underlying rationale for copyright, continued from the time of common law copyright has been the need to recognize a property status in the fruits of intellectual labor. The said rationale is applicable regardless of whether such labor assumes tangible form or not. [47] However, many commentators rightly point out that there is nothing inherent in the underlying objectives of copyright law which requires the imposition of a material form requirement as a necessary condition for subsistence in works. [48] Fixation, it is suggested would be better seen as a matter of evidence and proof of work, rather than a constitutive element of copyright itself. [49]

Because the procedural requirement has been given undue importance courts have had to take inventive approaches to award justice in cases of misappropriation of oral intellectual property. In Abernathy v Hutchinson [50] where a the defendants printed and published medical lectures which had not been previously reduced to writing by the lecturer, the Court granted an injunction on the basis that the defendant must have obtained a transcription of the lectures from a student who was under a contract not to publish for profit, being unable to recognize the lecturers’ proprietary in the lectures.

Some even point to an unreasonable hierarchy being furthered by the fixation requirement between traditional cultural songs, folklore etc. and the so called elite intellectual property right holders. [51] It can be seen that in the context of the spoken word an undue focus upon material form leads to results which might allow another to reap the benefits of the speaker’s labor and intellect.

2.3 Possible Problems with Copyright in Speech

There are a few caveats which must be kept in mind while extending copyright to the spoken word, most of which the District Court highlighted in Ernest Hemingway v. Random House Inc. [52] There exists a legitimate fear of stifling of free speech, if monopoly rights are generated in idle speech. However, these concerns can be easily met if the copyright afforded to speech is qualified with a precondition that requires the spoken word to be designated, at the time the work is spoken, (either expressly or impliedly) as an expression over which the speaker wished to exercise control. [53] In absence of the said the general presumption that, the speaker has not reserved any rights will operate. [54] There are also concerns over whether one person would own the copyright in case of conversations, since the final dialogue is a result of contributions of two or more separate persons. It is submitted that he contributions of distinct people remain identifiable at all stages, therefore each would have copyright over their speech.

Conclusion

This paper conclusively establishes the need for protection of speech, the possibility of such a protection by presenting a succinct perusal of laws in sister common law countries and exposes an opportunity for the same in India. It concludes that the requirement of fixation is a technical requirement which should not be allowed to over shadow the underlying aims of copyright law to adequately protect the creators of intellectual property and further incentivize them while promoting creativity and maintain free access to public. It further establishes the superiority of a copyright claim over protection under a ‘performer’s right claim, jurisprudence on which is close to nil in India, especially for non-formal kinds of speech not meant to address a gather as such. It finally explores some possible lacunae in extending copyright protection to speech and offers some ingenious solution to the said.