One of the principle theories under copyright law thatis practiced by both the United States and the United Kingdom is that it doesnot protect ideas but only expression of the idea. This approach is what isknown as the idea and expression dichotomy which is probably one of the mostoften debated issues under copyright law, as per Professor Samuels: “There ishardly a single principle of copyright law that is more basic or more oftenrepeated than the so-called idea-expression dichotomy.” An idea is theformulation of thought on a particular subject whereas an expressionconstitutes the implementation of the said idea. While many persons mayindividually arrive at the same idea, they can claim copyright only in the formof an expression to this idea. Such expression must be specific, particulararrangement of words, designs or other forms.
According to Bentley and Sherman,this dichotomy developed as far back as in the mid 18th century. Thequestion posed is whether the absence of the dichotomy would make or break theinflux of creativity. This paper seeksto show that the flow of creativity would be minimized if there is nodichotomy. Two main points of this workis to show the rationale of the dichotomy and an idea of a world without it.
Themost notable early cases in the United Kingdom that dealt with this concept canbe found in Miller v Taylor and Donaldson v Beckett. While the earliest in theUS is the case of Baker v Selden where the courts held that while a copyrightmay exist over the publishing and sale of a book, it does not extent to the artillustrated in the book. The U.S Supreme Court then created a clear distinctionbetween an idea and its expression, the primary reason being that otherwise, itwould result in providing an undue scope of monopoly to the copyright holderand would amount to anti-competitive practice. Firstly,the relevance of the dichotomy in copyright law. Patrick Masiyakurima explains thatthe bigger picture to look at is the free speech benefits of the dichotomy suchas the support of widespread circulation of information without fear of repriseand it encourages self-actualization allowing successive authors to accessuntransformed ideas in their works. His next point is that the dichotomy encouragesaccess to raw materials which are necessary for transformative uses of existingcopyright works and these uses in turn further endorses freedom of expressionby expanding sources of important information.
He goes further by using Baigent v. Random House asan example, stating that the idea that St Mary Magdalene did more than wipeChrist’s feet with her tears, which was then deployed in a popularpulp novel which in turn was transformed into a successful film. Such transformative use of an existing idea provokeda wider debate on the portrayal of Jesus’ celibacy in the gospels.
Goldstein’s summaryabout the rationale for the dichotomy is that is is to avoid waste,stating that “To give copyright to one author’s disclosure of facts wouldrequire others to rediscover those facts on their own, a wasteful effort thatwill produce neither new knowledge nor new art. ” Landes andPosner examine the dichotomy from the economic angle and note thatthe dichotomy is to prevent the idea originator from clinging on tothe idea and seeking rent. Forthe purpose of due diligence, it would be incomplete to omit the main issuewith the dichotomy which is the vagueness of the boundary between ideas and expression.As excepted, some still insist that “There is and can be no such ‘dichotomy'”. According to the Entertainment LawReview, this argument partly stems from lack of practical significance in recognizingsuch a dichotomy in that it offers “no meaningful guide toaction and is of no use in predicting the decisions of the courts”. Criticsinsist that “courts are perpetually engaged in a hopeless quest for distinguishingidea from expression: the unstoppable in pursuit of the unattainable”. In DesignersGuild, Lord Hoffmann apparently acknowledges the difficulty with the idea/expression division.
He explains through an example of literary copyright that “the originalelements in the plot of a play or novel may be a substantial part, so thatcopyright may be infringed by a work which does not reproduce a single sentenceof the original. If one asks what is being protected in such a case, it isdifficult to give any answer except that it is an idea expressed in thecopyright work”. Interesting argument it may be but this paperwill not dwell on the rampant confusion of the distinction between idea andexpressions. Movingon to a world without the dichotomy, two recent cases where the courts totallyignored the dichotomy would be discussed. In the words of PatrickMasiyakurima, in both cases, mere emphasis on the protection of labor resultedin unwarranted protection and produced surprising outcomes that baffle commonsense.
Arguably, what was copied in was an idea, and both cases were wronglydecided. The first case is Temple Island Collections v New English Teas. Thecase deals with a photograph of Westminster Bridge with a red bus on it andwith the Houses of Parliament as the background. The defendants were found tobe infringing the claimant’s copyright by taking a similar photo and coveringtheir goods.
Ginsburg points out the error in this judgment as the defendantscopied an idea not an expression. American cases such as Ets-Hokin v SkyySpirits or Kenrick v Lawrence, show that copyright of such a scene isthin because there are very limited ways that this idea can be expressed. Inthese cases it was held that only the identical copying taken from an identicalangle should constitute as an infringement. Therefore, given the limited andrestricted choice of the scene, such similarity is inevitable and, as the UScourt in Ets-Hokin v Skyy stated, the expression of the idea is”constrained”. Patrick applauds the US stating that USauthority certainly has persuasive value.
He notes that even when there isdoubt concerning the applicability of the US authorities, similarly Englishauthorities plainly put it beyond doubt that it is the idea that is copied. Itwas ruled in Kenrick that “A square can only be drawn as a square, across can only be drawn as a cross, and for such purposes as the plaintiffs’drawing was intended to fulfil there are scarcely more ways than one of drawinga pencil or the hand that holds it. If the particular arrangement of square,cross, hand, or pencil be relied upon it is nothing more than a claim ofcopyright for the subject, which in my opinion cannot possibly besupported.” That observation could not be more appropriatelyapplied to Temple Island, where the specific placement of the bridge, redbus and Houses of Parliament is a subject for which no copyright can beclaimed; rather, such a subject is open to anyone to use freely. The next casewhich is as troubling as the last is Bodo Sperlein v Sabichi. Similar facts asTemple except this had to do with the arrangement of branches with berries.
Inthis case the point of the idea/expression division was not broughtup; rather, the whole judgment hinged on the technical issue of whether thesimilarities between the illustrations amounted to infringement and, havingfound infringement, what profits were then to be accounted for.Other objections apart, the main problem here isthat the court failed to consider the idea/expression doctrine in anyform whatsoever; the case was wrongly decided; what was copied was an idea, theidea of using dark red lines and dots to represent a branch of red berries. Patrickhighlights that most commentators who have raised different sorts of problems withthe idea-expression dichotomy have identified that an idea cannot exist apartfrom some expression. For the purpose of copyright ability, speaking of anidealess expression makes no sense, no matter whatever maybe the nature of workbeing copyrighted. Cases such as these that ignore the dichotomy resultin an unfair and highly questionable judgments. Toconclude, in the words of Raheel R Daureeawo, ‘The goal of the law of copyrighthas always been to promote scientific, literary and artistic creativity andprotect as well as limit these rights in order to prevent monopolies’.
Theabsence of the idea/expression dichotomy contradicts the essence of copyrightlaw itself, therefore how can it not stifle. This work does not dispute the validarguments and confusion that the dichotomy brings in it’s lack of a cleardistinction between idea and expression. The US and UK both have the samefundamental copyright principles and the idea/expression dichotomy supportsthis , ignoring it or pretending that it is unnecessary would only add to theconfusion it already creates. It’s benefits for the system of Copyright Law faroutweigh the drawbacks and critisms.