Idea Expression Dichotomy UK

Copyright law goes beyond protecting just a verbatim copy and delves on a scheme of arrangement. Therefore copyright law acknowledges not only the form in which the author expressed the ideas but also the content of the ideas to a certain extent. In essence, since copyright law goes beyond the consideration of verbatim copies the usage of any element of the work could constitute a copyright infringement. This gives rise to the problem of demarcating a line between the unprotected idea & protected expression since copyright infringement could exist for taking the substance without copying the form. Ideas are human conceptions that have been represented. They are not abstract conceptions that exist independent of a thought process [3] . The process of thinking of an idea involves giving it expression. Therefore, ideas are human conceptions and cannot exist independently of a way of conceptualizing i.e. essentially the expression. In essence there are no expressionless ideas. Therefore the idea expression dichotomy lives upto its name of being the central axiom of copyright law in determining what is copyrightable. The limitation that has been imposed by law on copyrightable materials is copyrightability of ideas. Therefore this limits the elements which can be copyrightable but yet does not provide a workable solution for the dichotomy. The perimeters of the encroachment inevitably vary because the interpretation of the idea-expression dichotomy in the legal order at any given time is essentially a reflection of shifting political choices in a particular jurisdiction and era about what should be able to be privately owned and what should be kept in the public domain [4]

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Though the content behind something can be similar the means and ways of expressing it are completely different as are the modes of receiving the expression. As an illustration, Shakespeare’s way of characterizing a scene and any other author’s way of depicting a scene would be clearly different even though the subject matter of characterization would be different.

Therefore by virtue of this paper the researcher seeks to analyze the idea expression dichotomy as well as provide for a justification and a working critique to the same. The courts have never been clear to differentiate the concept of “unprotected ideas” from “protected expressions” and hence forth would go into the aspect as well. An excurses into the history of the origin of this difference will be constructed and thence an analysis of Indian Law on the subject.

History & Origin of the Doctrine

The history of Copyright though began with the invention of the Gutenberg printing press and the passing of the Statute of Anne in 1710. The Statute of Anne was bought into play for the encouragement of learning, by vesting the copies of printed books in the authors. Therefore, it can be said that first attempt at passing a copyright legislation recognized the fact that there would protection of only expressions that have been put forth in the books of the authors. But this legislation cannot be squarely called a copyright legislation.

The courts show a more interesting history that can be discerned through two different eras of judicial pronouncements. The history of copyright law has occurred in the jurisdictions of the United Kingdom and United States, where the legal principles were settled. India, in recognizing the need for a separate copyright law has agreed on the basic principles [5] which have been embodied in the United States, United Kingdom Laws and the International Agreements on copyright [6] .

The idea-expression dichotomy as it stands envisages the freedom of the existence of ideas in the public domain as it involves dissemination of knowledge and therefore the encouragement of learning. This assertion has been seen to have been existing from the times of ancient Rome where Seneca had stated that ideas are common property and therefore cannot be protected [7] . In the case of Millar v. Taylor [8] wherein Judge Yates gave the dissenting opinion, stated clearly that the protection that was guaranteed under copyright laws was to print a set of intellectual ideas or modes of thinking or set of works. Therefore by not referring to a fixated material form the inevitable conclusion that forms is the fact that the dichotomy existed but as an abstraction. Another factor that is important to be seen is that there was the absence of patent law and therefore there would be no overlapping of rights of novelty or “idea” in such a case. This distinction that was created in a dissenting opinion was further diluted by the case of Emerson v. Davies [9] wherein it was stated precisely that there would be ‘copyright in a plan, arrangement and combination of materials for an author and in his mode of illustrating his subject if it is novel’. Therefore, the added criteria of novelty and the usage of words of arrangement and combination clearly dilutes the gap between idea and expression further. In the case of Lawrence v. Dana [10] the court said that the author of a book has as much right in the plan, arrangement and combination as he has in his thoughts sentiments and reflections. In this regard it is stated that there came a point in the history of copyright law wherein the dichotomy had been diluted and ideas were treated at par with expressions.

The jurisprudence with regard to copyright law was set straight with the decisions of Burros-Giles Lithograph Company v. Sarony [11] and the origin of the doctrine was marked in the cases of Baker v. Selden [12] and Holmes v. Hurst [13] . In the cases mentioned above it was seen that the court clearly drew a distinction by making two categories for works i.e. un-protected art in protected work and protected work [14] . Therefore I can be said that though the court did not clearly differentiate between ideas and expressions, there is a clear distinction that can be discerned through the usage of the words “unprotected art in a protected work” which gives shape to the demarcation of the Dichotomy. This doctrine was given definite form and used in cases [15] after Holmes v. Hurst [16] where it was said that

“The right thus secured by the copyright act is not a right to the use of certain words, because they are the common property of the human race, and are as little susceptible of private appropriation as air or sunlight; nor is the right to ideas alone, since in the absence of means of communicating them they are of value to no one but the author”

The copyright dichotomy has spread across many jurisdictions, forming the fundamental axiom of copyright law in determining the copyrightability of a certain subject matter. Furthermore, it has served as an adjustment to accommodate Patent Law as well. There has since the origin of the theory been a debate over the justifiability of the doctrine.

Justification for Copyright Theory

The primary purpose of copyright law is to maintain the balance between provision of incentives to promote creative works on one hand and public interest on the other. The best possible manifestation of this statement is present in the United States Constitution’s copyright clause which states

“aˆ¦.promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” [17]

Therefore, in essence, copyright law is aimed at promotion of creativity and dissemination of creative works so that the public can benefit from it [18] . To reach this goal the authors are given incentives to create by virtue rights such as the right to profit and control their work. But it must be kept in mind that right of one against another essentially involves the abstinence from a certain right for another. Therefore, the provision of exclusive rights over one work would constitute a barrier to any others from using the same in his/her work [19] . This would lead to the achieving of a self defeating purpose. It is conventional to suggest that literary imagination is not s volcano of pure imagination [20] . In this regard if the purpose of copyright law was to give the author of an expression, exclusive rights over the idea as well the balance of copyright law would tip over to private rights rather than public interest. In the case of Eichel v. Marcon [21] the New York circuit court set forth this proposition very artistically and said

“If an author, by originating a new arrangement and form of expression of certain ideas or conceptions, could withdraw these ideas or conceptions could withdraw these ideas or conceptions from the stock of materials to be used by other authors, each copyright would narrow the field thought open for development and exploitation, and science poetry, narrative and dramatic action as well as other branches of literature would be hindered by copyright instead of being promoted”.

Another factor which strongly provides for a justification is that though copyright law provides for incentives for creation, it undermines competition which usually marks the efficiency of the market. By virtue of making even ideas copyrightable, there would be an increase in the cost of provision subsequently simply due to the fact that the subsequent author would seek to offset the cost of the license to the public.

The idea expression dichotomy in copyright law finds its justification in the Utilitarian school of thought. The utilitarian school of thought has justified the existence of copyright law so as to induce innovation and intellectual productivity. The utilitarian thought, with their strong belief in, the greater good of the greater number, advocate the conferment of rights in order to strike a balance between the economic interests of right-holders and the greater interest of the public [22] . It has been set forth that utilitarian theorists argue that limited monopolies spur innovation, and in order to foster innovation the system must recognize exclusive rights in intellectual creations–rights which are limited in duration and scope [23] . The Idea/expression dichotomy seeks to provide for such a balance. By limiting the scope of giving rights to the expressions only, copyright law seeks to provide for the greater good which is the dissemination of ideas. By keeping ideas in the public domain and thereby giving public access on one hand to copyrighting expressions to provide incentive the goal of copyright law which is to promote creativity is achieved. In essence the Idea expression dichotomy imposes a limitation upon copyright law for the greater good [24] . In a situation where the ideas were also copyrightable the public access to such would be difficult leading to derogation of arts sciences and literature.

Another factor that seeks to provide justification for this dichotomy is the Lockean labour theory. The theory has been used in many instances without regard to the proviso contained therein. The Lockean labor theory in brevity states that “the laborer is entitled to the products of her labour, provided that there is enough, and as good, left in common for others” [25] . This essentially again seeks to suggest a limitation of the exclusive right that is conferred by copyright. Moreover, it is asserted that there is reference to leaving ideas in the public domain by suggesting that “enough as good is left in common”. Therefore, the statement in short seeks to provide a justification to provide protection for applying labour to the abstraction (idea) which exists in public domain to give it a definitive form whereas exempting the idea (abstraction) itself.

Therefore, copyright theory clearly provides for the distinct treatment of ideas from expressions in terms for what is to be copyrighted. This differential treatment therefore transforms into a distinction between copyrightable works and non-copyrightable works. Theoretically speaking copyright does elicit a dichotomy but the said dichotomy has been said to be troubled in light of the absence of any line demarcating an idea from an expression

The problems shrouding the dichotomy : Criticisms

It is set forth at the very outset that if the law of copyright does not or cannot effectively separate ideas from expressions, then it cannot be persuasively argued that ideas are not controlled by the law of copyright and thereby removed from free circulation in the public sphere [26] .

The history of copyright law has viewed ideas and expressions as two different categories and has therefore made a line to distinguish the same. There have been many problems that arose in the past century with regards this distinction and its theory but this distinction has been retained. A district court in New York in the case of Steinburg v. Columbia Pictures Indus [27] explained the retention of this imprecise doctrine to be a result of no other better alternative.

Ideas are human conceptions that have been represented. They are not abstract conceptions that exist independently waiting to be thought. The process of thinking of an idea involves giving it expression. Therefore, ideas are human conceptions and cannot exist independently of a way of conceptualizing i.e. essentially the expression. An idea is the substance of a writing whereas the expression is the form. The substance shapes the form and the form shapes the substance. Hence both cannot exist independently and have a complementary relationship. In essence what is implied is that there are no expressionless ideas. Therefore ideas never exist independently of an expression since the only way to conceptualize an idea is an expression. Though law creates a fictionary line between ideas and expression but in essence there can be no unexpressionless ideas [28] . Law in essences views ideas as abstractions or generalities and therefore distinct from expressions which are fixed in a medium [29] . Though there have been many judicial pronouncements upon the existence of the dichotomy, but yet none of the courts have coherently put forth the definition and scope of “idea” or “expression” or the demarcating line between the two [30] . The dichotomy has been signified in many cases as “ideas behind expressions [31] ” or “underlying ideas [32] “, but have neither gone onto clearly distinguishing the difference nor provided conceptual clarity with respect to the terms. Furthermore, the variety of terminologies that have been used seeks to provide a lack of clarity in this field.

At the outset the creation of this demarcation involves a number of implications. Firstly, it has been asserted that upon scrutiny of a certain work there can be a number of ideas that are ascertained at different levels [33] . Therefore in the absence of any coherent definition and scope of idea or expression there would essentially be an imposition of a courts own value judgments [34] in answering the question of what is a idea or expression. Indian Courts have also seen the imposition of such a value judgment, specifically in the case of NRI Film Production Associates v. Twentieth Century Fox & Anr [35] wherein it was alleged that the Hollywood production Independence Day was a copy of the film Extra-Terrestrial Mission. The court it was seen pronounced upon the point on infringement and while doing so imposed its own value judgments around the movie and came to the conclusion that there was no uniqueness regarding the same. Though it was seen in the case that the counsel for the applicants had vehemently agitated upon various novel conceptualizations but the court nevertheless found a distinction in the manner in which the script had been posed.

Secondly the problem that is posed is that copyright recognizes infringement not only when there is a verbatim copy of the concept at hand but also when there is copy of the scheme of arrangement [36] . In this regard it is asserted that a writing’s idea has a great bearing upon the scheme of arrangement and other similarly placed matters. But, the judicial fiction of the Idea/expression dichotomy essentially groups the scheme and arrangement within the domain of an “expression” and consequently creating a conflict in the paradigm of the dichotomy. The courts essentially by virtue of this distinction have created two categories under ideas i.e. to say ideas that are un-protectable due to being abstractions and ideas that are protectable due to having a direct relation with the expression of the idea.

Therefore it is concluded that there are inherent problems with the working of this dichotomy which is complex and intricate. The courts in their judgments have failed to define the abstractions (Ideas) and thereby differentiate ideas from expressions with the needed clarity so as to provide for a coherent judicial fiction.

The Dichotomy in the Indian Copyright Act 1957

The Indian Copyright act has been established after the realization of the need of a new copyright law to replace the existing copyright law enacted by the British. It was felt that the Copyright Act of 1911 which was bought into application into the Indian Jurisdiction with adaptation as the Indian Copyright Act of 1914 [37] . Since there was a fundamental difference in this constitutional situation post independence the legislature decided to bring about the Indian Copyright Act, 1957 [38] . The principles regarding copyright law were settled when bringing a law regarding the same as the legislative intention embodied in the Statement of Objects and Reasons clearly states the reliance upon the Berne Convention and the Universal Copyright Convention [39] . Furthermore, by reference to “aˆ¦.in light of the experience gained in the past forty years over the working of the act” [40] it can be concluded that there is acceptance of the basic principles of copyright law.

The Indian Copyright Act does not contain any specific reference to the Idea/Expression Dichotomy but yet there is an implied recognition of the right. Section 13 sets forth the works in which copyright subsists and enumerates the following a) Literary, dramatic, musical and artistic work b) cinematograph films & sound recordings. In this regard, to obtain clarity it will be expedient to look into the definition of all these types of works which have been provided under the Copyright Act as the subject matter of copyright. Artistic work has been defined under Section 2 (c) of the Indian Copyright Act [41] . In this regard if it is seen the nature of the section which is an inclusive and indicative definition shows central characteristics of being fixated and being concrete expressions of an artist’s creative edge. Furthermore, though the definition of Literary work provided in Section 2 (0) of the act eludes a specific form [42] , reference can be made to the definition of Literary Work as under the Berne Convention on Copyright [43] , which clearly requires literary work and all allied works under the definition to be in form of “an expression”. Furthermore, the definition of dramatic and musical work which have been provided for under sections 2(h) [44] and 2 (p) [45] provide for the external manifestation of the idea by way of fixating it in a medium as well as through the requirement of being an arrangement or scheme which is capable of being discerned.

Therefore in this regard it is asserted that the definition of the different types of works which are the subject matter of copyright under Indian Law clearly through the nature of the definition show that expressions are the only mode that is copyrightable and not ideas. This assertion can be justified with two points, firstly, the fact that the common characteristic running through all the types of works running above is that of a concrete fixated work. Secondly, all the illustrations mentioned in the definition clause clearly show another underlying scheme which is that there needs to be an arrangement of ideas and scheme of arrangement in the works that have been enumerated as the subject matter of copyright.

Furthermore, the courts in India have identified the existence of the dichotomy and therefore not granted copyright to ideas [46] . There have been a plethora of authorities in this regard, but the settled position of law expressed by the Supreme Court has been in the case of R.G.Anand v. Delux Films [47] , the court clearly held that no copyright subsists in ideas, subject matter, themes, plots, legendary facts and only the original expression of such thought or information in some concrete form is protected [48] . This is because law does not recognize property rights in abstract ideas and does not accord the author or proprietor the protection of his ideas [49] . While pronouncing the judgment the Apex Court looked at various decision from U.S. and U.K like the case of Donoghue v. Allied Newspapers [50]

“This at any rate is clear, and one can start with this beyond all question that there is no copyright in an idea, or in ideas…. If the idea, however brilliant and however clever it may be, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not until it is (If I may put it in that way) reduced into writing, or into some tangible form, that you get any right to copyright at all, and the copyright exists in the particular form of language in which, or, in the case of a picture, in the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or look at it.”

The Supreme Court concluded by setting forth the law underlying copyright act by stating that the dichotomy did in fact exist. The court opined that an idea, principle, theme, or subject matter or historical or legendary facts being common property cannot be the subject matter of copyright of a particular person [51] . Therefore since the idea or the theme behind a work is not copyrightable, where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.


The Idea-Expression Dichotomy that exists as a fundamental principle of copyright law essentially seeks to protect the expressions and not the Ideas behind the expressions. The case for securing protection to the expressions as opposed to the ideas remains entrenched deeply in the theory of copyright law. The doctrine got definitive form in the case of Baker v. Selden [52] and thereafter was affirmed in later judgment of Holmes v. Hurst [53] . Notwithstanding the justifications for the dichotomy, there has been much debate about the efficacy of the doctrine. Since the aim of copyright law is to encourage learning by giving incentive, by copyrighting ideas the whole aim of giving incentives stands nullified. The authors novel thoughts can be taken and adapted by subsequent authors of works. But on the other hand the dichotomy serves a dual purpose i.e. to say it helps in distinguishing copyright law from patent law which essentially protects novelties and on the other hand serves public interest by allowing dissemination of ideas into the public domain.

This doctrine has been adapted into Indian Law, though not expressly through the statutory provisions. The doctrine has been derived indirectly from the provisions of the act since it forms the basic principles underlying Copyright Law. The courts in a number of cases have reiterated this dichotomy and clearly said that expressions in the form of arrangement, schemes of arrangement etc are copyrightable.