INTRODUCTION There is hardly a single principle of copyright law that is more basic or more often repeated than the so-called idea-expression dichotomy. The doctrine is followed dutifully as an unquestioned principle in hundreds of cases: the “ideas” that are the fruit of an author’s labours go into the public domain, while only the author’s particular expression remains the author’s to control. This principle, sometimes described as having constitutional origins, was developed by the common law, and has now been incorporated into the copyright act itself.
Copyright confers on the owner the right to make copies of their work whilst prohibiting others to do the same. The Copyright system gives the owners exclusive rights with regard to the exploitation of their works. However, the copyright doctrine does contain limits on copyright holders’ rights designed largely to mitigate copyright’s burden on creative appropriation. According to Barrett (2008), “Copyright gives rights only in the author’s particular means of expressing ideas and facts, never in ideas and facts themselves”.
Thus copyright does not protect the ideas but the manner in which they are expressed. Although this statement can be made seemingly without effort and with great ease, its application is not an easy undertaking and thus requires much effort. This is so because copyright law does not provide a clear distinction between the unprotected idea and the protected expression. For many years, the courts and indeed Intellectual Property Law practitioners put in enormous effort to establish and therefore draw a clear distinction between an idea and an expression but to no avail.
Copyright law has till present failed to establish a clear demarcation between the boundary of an idea and that of an expression. As Justice Brenman said “this distinction between protected expression and unprotected ideas is at the essence of copyright. ” This was compounded and highlighted in Sheldon v Metrogoldwyn Pictures by Judge Learned Hands when he conceded that the line between idea and expression “wherever it is drawn, will seem arbitrary”.
Courts consider this idea/expression dichotomy to be the central axiom of copyright law to use when determining what is protected in infringement cases. IDEAS What is an Idea? The answer to this question is central to the attempt to draw a distinction between idea and expression and hence the subsequent resolution to the idea/expression dichotomy. As observed by Lord Hailshaw in LB (Plastics) Ltd v Swish Products Ltd, the distinction depends on what one means by ‘ideas’. Ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection.
As stated in the Copyright Act: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. This specific exclusion helps maintain the distinction between copyright protection and patent law. Ideas and inventions are the subject matter for patents, while the expression of ideas is governed by copyright law.
If copyright were extended to protect ideas, principles and devices, then it would be possible to circumvent the rigorous prerequisites of patent law and secure protection for an invention merely by describing the invention in a copyrightable work. With respect to the statement by Per Lloyd in Michael Baigent ; Richard Leigh v The Random House Group Ltd (The Da Vinci Code case), Ideas lie on the left side of the line between idea and expression, and therefore are not protected by copyright.
Copyright infringement cannot result from copying an idea. The reasons why copyright law does not protect ideas is that; if the first person to produce a work based on an idea has a monopoly over it, the spread of knowledge and invention and innovation would be greatly impeded. This reason is shared by Fishman (2011) who states that, “if authors are allowed to obtain a monopoly over the ideas, the copyright law could end up discouraging new authorship and the progress knowledge – the two goal copyright is intended to foster”.
The Copyright doctrine assures the authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. According to Barrett (2008), “the law must ensure that the basic building blocks of expression (ideas, facts ; elements that are standard or routine in connection with a given kind of work) remain in the public dormain free from copyright owners control, in order to ensure a continuing flow of new authorship in future”.
The courts have in several cases highlighted that copyright right law does not assure authors protection in ideas. In Michael Baigent v The Random House Group Ltd where an allegation had been made that the novel Da Vinci Code infringed the copyright in the work entitled the Holy Blood and The Holy Grail (HBHG), Mummery LJ said “Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material.
It does not however, extend to the clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the claimants to monopolise historical material. Theories propounded, general arguments deployed or general hypotheses suggested or general themes written about”. The foregoing statement points that the subsistence may extend to the way in which facts, ideas and theories are expressed by the author but this does not mean that facts and ideas are themselves the subject matter of copyright protection (Bainbridge, 2010).
EXPRESSIONS Mummery LJ in Michael Baigent v The Random House Group Ltd describes an expression as follows, “Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material”. Expression constitutes the part of work that is protectable under copyright under copyright law. Article 2 of the WIPO Copyright Treaty provides that “Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such”.
Copyright laws were enacted to encourage originality by regulating creative expression. The subject matter of copyright protection is ‘original works of authorship fixed in any tangible medium of expression’ (Dratler, 2006). Copyright gives authors rights in particular means of expressing ideas and facts, never in ideas and facts themselves. According to Netane (2008), copyright law prevents others from copying only the copyright holder’s particular “expression”, not ideas that are expressed.
In the case of University of London Press Ltd v University Tutorial Press Ltd, Peterson J stated that “Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in case of a ‘literary work’, with the expression of thought in print or writing”. This was also highlighted in two other cases; Feist Publication, Inc v Rural Telephone, and Michael Baigent v The Random House Group Ltd. In the former case, it was held that copyright infringement may lie only in the copying copyrightable expression.
In the latter case, it was held that copyright subsistence may extend to the way in which ideas, facts and theories are expressed by the author. IDEA/EXPRESSION MERGE DOCTRINE It is clearly stated that copyright law grants rights in the author’s expression of ideas, and that protection will be given as long as the expression of the same ideas are distinct. However, there are times when there is one way, or only a few, to adequately express a particular idea. Ideas pretty much dictate the form of expression as highlighted in Landsburg v Serabble Crossword Game Player.
This results in the idea and its expression being considered to be one. According to Fishman (2011),” In such cases, the idea and its particular expression are deemed to merge and the expression-the author’s words- is either treated as if it were in the public dormain or given very little copyright protection”. The effect of this is that protection may be lesser than when idea and expression are not merged. This is demonstrated in Kenrick v Lawrence were effective protection was denied to a drawing showing a hand holding a pen and marking a ballot paper.
The intention of the person commissioning the drawing was that it could be used to show persons with poor literacy skills how to vote. It was held that a similar drawing did not infringe because it was inevitable that any person who attempted to produce a drawing to show people how to vote would create a similar drawing (Bainbridge, 2010). SUBSTANTIAL TAKING Section 2 of The Copyright and Performance Rights Act 1994 provides that substantial part includes any part of the work which on its own can be identified as part of the work of someone who is familiar with the work.
Therefore substantial taking is the copying of the substantial part of a given work. However, it is difficult to determine what a substantial part is as no standard measure exists Plastics Ltd v Swish Products Ltd. The courts determine substantial by reference to the quality of what was taken and not the quantity. This was also highlighted in Ladbroke (Football) Ltd v William Hill (Football) Ltd where it was held that substantial must be decided by its quality rather than quantity, and that the significance of the part taken is a matter of fact and degree.
This means that even a very small part of work can be substantial if it is the most valuable or memorable piece in the work. The principle of substantial taking displaces the earlier notion that ‘any’ copying of a protected work will automatically translate to infringement. The principle of substantial taking stipulates that copyright infringement will only result from the copying of the substantial part of a protected expression not the unprotected idea. Therefore, the determination of infringement depends on the quality of the work portion used in relation to the copyrighted expression as a whole.
In the Harper v Row it was held that the determination of substantiality should not only the proportion taken but also on the “the qualitative importance of the quoted passages of the original expression” (Alces, 1994). CONCLUSION Ideas are building blocks of expression. An Idea is anything that when absent will result in no formulation of any work. Ideas are like ‘materials’ used in the construction of what results in copyrighted works. Expression refers to the unique and distinct manner in which unprotected ideas are presented.
Expressions are ideas organised in a particular way, the organisation of which requires the use of skill, labour and judgement. It is such an expression that is protectable under copyright law. Richard (1990) postulates that, two important dichotomies lie at the foundation of copyright: (1) the subject matter of writing versus protectable expression of that subject matter, and (2) unprotectible versus protectable expression. The idea/expression dichotomy does not clearly articulate either of these distinction under the guise of its baseless distinction between ideas and their expression.
The dichotomy further complicates infringement cases by relying upon a notion of “abstracting” ideas from expressions. Only the basic copyright requirements for original works of authorship and the infringement of such works must be considered. For the proper axiom of protectability is not that expressions of ideas are protectable while ideas themselves are not, but merely that original and creative expressions alone are protectable. Though an expression is protected, copying it does not automatically result in infringement.
Substantial taking is what ultimately determines whether or not copyright has been infringed. The protection of an expression hence rests on the quality of the portion of the expression copied. Infringement will only result from the copying of the substantial part of a protected expression not the unprotected idea. REFERENCES 1. Fishman S (2011), The Copyright Handbook: What every writer needs to know, 11th edition, NOLO 2. Bainbridge D. L (2010), Intellectual Property, 8th edition, Pitman London. 3. Barrett M (2008), The Emmanuel Law outlines series: Intellectual Property, 2nd edition, Aspen Publishers 4.
Netane N. W (2008), Copyright Paradox, Oxford University Press 5. Dratler J (2006), Intellectual Property Law: Commercial, Creative, ; Industrial Property, Volume 13, Library of Congress 6. WIPO Copyright Treaty (WCT), adopted in Geneva on December 20, 1996. 7. Alces P. A (1994), Commercial Law of Intellectual Property, Aspen Publishers 8. Richard H. J (1990): The Myth of Idea/Expression Dichotomy in Copyright: Pace Law Review: Vol. 10. No. 3. 9. http://www. edwardsamuels. com/copyright/beyond/articles/ideapt1-20. htm