Unfolding the Myth surrounding the Idea/Expression dichotomy in Copyright Law

To discuss copyright law, it is imperative to know the definition of the word. Copyright, as the name suggests, it is a right that stops other individuals from copying or reproducing one’s work. Ever since the emergence of such rights, the debate around ideas and expression has begun. Copyright is the right that protects the expression and not the underlying idea. If any person has an idea of a character or has a story in his/her head would not be considered as a copyrighted work unless it is communicated to a paper or any other fixed format. However, once the work is communicated to a piece of paper, whether by the person himself or by someone else, it is considered to be a copyrighted work. The dichotomy between expression and idea is more visible in courts. The courts consider this dichotomy to be the primary axiom of copyright law to conclude what is protected in infringement cases.[1] Justice Brennan in Harper & Row Publishers v. Nation Enters[2] states that there is a clear dichotomy that exists between protected expression and unprotected ideas and this is the crux of copyright law.[3] Similarly, the commentators believe that this distinction is the “most pervasive…. Threads in copyright law.”[4] However, where it is believed that there is a clear distinction between ideas and expression, there exist judges who believe that it is challenging to draw a line among protecting ideas and expression. This idea is depicted in a number of cases, for instance, the University of London Press Ltd v. University Tutorial Press Ltd [5]; Plix Products Ltd vs. Winstone.[6]

If an idea has to be expressed in order to claim copyrights and considering that idea could be expressed in only one form, then that inevitable expression of the work is unprotected.[7] Likewise, if an idea is expressed in a more detailed manner, the copying of that idea would include the copying of the expression. It is evident that in such cases, the copyright would not only protect the copying of the idea but also the expression in which it is converted.[8] The two distinct perspectives fail to investigate the inherent root problem. The article unfolds the root cause of the problem that has been raised ever since the copyright laws have emerged. Although the copyright laws protect the expression and not the underlying idea; however, it fails to comprehend that an idea cannot exist without some form of expression. The difference between form from the substance of writing could be identified by comparing the substance with writing’s idea; however, each idea must essentially have an expression. Hence, making a difference between “idea” and “expression” should not be the fundamental basis for deciding what should be protected under copyright law. Preferably, the distinction should just be made between the expressions that are protected and the expressions which are unprotected. The article firstly provides the dichotomy between the idea/expression. Secondly, the article analyzes the case laws which show the dichotomy. Lastly, the article unfolds the myth surrounding the ideas/expression debate.

Traditionally, the courts have refused to provide an extensive definition of the term “idea”. Nonetheless, an idea could be defined as a thought, a mere mental image that has yet to form a shape of an expression. In layman language, it could be described as an accumulation of thoughts on a specific matte, on the other hand, the expression would be the practical implementation of the said idea. It is then obvious that one idea could have numerous expressions. This is where it gets complicated, as any single idea could be approached through different expressions. Hence, there would exist different copyrights of the same idea. The numerous expressions of the same idea would co-exist without the infringement. However, a problem exists when it is difficult to delineate between idea and expression. There exist the idea of a merger where both expression and idea cannot be separated. In such an instance, a merger has said to have occurred between them. In such a scenario, the expression might not be copyrighted due to the fact that it will then be copyrighting the underlying merged idea. Moreover, it means that where the idea and expression are inseparable, the protection of the expression would entail the monopoly over the idea upon the copyright owner. Meanwhile, there also exists an idea that can have several expressions, in the absence of which the idea might not exist itself. In simple words, there can exist an idea wherein, altering the form of the expression would change the idea itself. This is often known as scenes a faire. Similarly, another example of the merger is where there exist a few ways to express an idea. This is known as the “Idea-expression identity”.[9] Even though the idea/expression distinction has a historical context and is time-honored doctrine; however, it has faced several criticisms due to its inefficacy and the failure to deliver practical guidelines beneath its metaphysical surface.

The debate surrounding ideas and expression has created several issues. As many authors and artists believe that their ideas were copied and given a form of expression before they were able to put it down in any material form. It is famous that Shakespeare has copied the idea from other authors and has turned into his own expression. This indeed is a tricky lane as the ideas if not manifested in the form of expression are just mental images of which the public is unknown. The first question that arises is how would someone copy an idea that is not known to the public? It is quite impossible that an idea could be copied. However, it is quite possible to steal an idea and put it into expression. If Person A shares an idea of a character or a story to Person B. As of now the idea has no manifestation. Person B steals the idea and puts it into writing or a form of expression and gets the copyright. It is believed that ideas are also a product of mental exertion and hence should be a person’s own intellectual creation. Person B would get the monetary compensation that Person A should have gotten. Unfairly, Person B claims to be the owner of the story that he never had an idea of. Hence, from this perspective, the ideas should be protected under copyright laws. The opposite argument states that the protection of ideas would create a monopoly and it would increase the deadweight loss. A similar judgment was produced in SAS Institute Inc. v. World Programming Ltd.,[10] the judge opined that by providing copyrights to the underlying idea of an expression, this would create chaos as people would monopolize their ideas. In return this will halt any technological advances as the same idea could be manifested in a million expressions; however, when the ideas are protected then nobody would be able to make the expression using the idea. But at times one believes the ideas are important to be protected. When we look at the video games industry, it is the idea of the game that makes the bucks. One of the most popular eSports game is DOTA 2. The idea behind the Defense of the Ancient was stolen from custom maps of Warcraft III. The idea of such a game was to create a Multiplayer Online Battle Arena also known as MOBA. The idea was stolen firstly by League of Legends 2009 and secondly by DOTA 2 and many others. The original game died because of the emergence of better graphic games and more complex itemization that tested the skill of a player even more. DOTA 2 arranges an International Cup (TI) every year that always has one of the highest winning pool prizes in eSports history. In such a scenario, the protection of an idea sounds plausible because it would have allowed the original owner to create millions of bucks. However, it is also complicated because if the ideas were protected we would have never gotten better graphic games such as DOTA 2. The dilemma is a real struggle. Similarly, the idea behind the PUBG (PlayerUnknown’s Battlegrounds) was a first-person shooting game. It was then copied by Fortnite which became more successful than PUBG. A lot of videogames shifted to Fortnite and left PUBG.

One of the solutions that one could come up with is that the ideas should be registered. Although the copyright does not need to be registered as patents but registering the ideas would allow the owner to protect their ideas. The ideas would then be publicly accessible but would not be in the public domain. Any person who would want to work on the idea to make it better or tangible could buy the ownership rights and work on it. If the person who has registered the idea does not work on the idea, then it should be given to the person who has the means to put into manifestation and an expression that would be useful for everyone. Moreover, there should be a time constraint as to when the ideas are no longer protected. This will also help in avoiding the tragedy of the anti-commons. However, this still does not solve the problem of monopolization and exploitation. There is a need to change the dynamics from ideas/expression debate to something else.

Historically, the judges never distinguished the ideas and expressions. Ideas and expressions were discussed together. For example, Lord Justice Mansfield in 1769 explained the protection provided by copyright law as, “an incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and mode of expression.”[11] Hence, the ideas and expressions were considered to be the author’s right. Earlier court decisions also show that there was never a distinction between ideas and expressions. In Emerson vs Davies,[12] Justice Story never suggested contrast between ideas and expression. He opined that each author has a copyright in the plan and compilation of his materials, whatever the form may be, it should be original and new substance.[13] However, in Burrow-Giles Lithographic Co. v. Sarony,[14] which opined that writings include all sorts of writing, printing, engraving, etc. These are the forms through which the ideas were given the shape of expressions. This case put forward the dichotomy between ideas and expressions and considered them to be part of distinct categories. Likewise, Stowe v. Thomas[15] also augmented the debate surrounding the dichotomy between ideas and expressions. The developments in the 20th century provided more explanation for the dichotomy that exists between ideas and expressions. In Kaleem Co. v. harper Brothers,[16] it was opined that copyright does not extend to ideas. Similarly, in Dymow v. Bolton,[17] granted a significant statement related to the debate: “Ideas as such are not protected…. The copyright law protects the means of expressing an idea….”[18] Moreover, the common law provided a stronger view of idea/expression dichotomy in the late 20th century in Mazer v. Stein.[19] It was opined that “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea --- not the idea itself.”[20] Moreover, the Copyright Act of 1976 further codified the dichotomy of idea/expression. Section 102 (b) specifically categorizes ideas and expressions. It states that “In no case does copyright protection for an original work of authorship extend to any idea….”[21] Usually, the explanation that is provided to justify the dichotomy that is created is to balance the interest of the society. Moreover, the Supreme Court in Harper & Row Publishers, Inc. v. Nation Enterprises,[22] the court opined that “copyright’s idea/expression dichotomy strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.”[23]

The traditional difference between idea and expression is ill-advised and immaterial. There exist no “expressionless idea” and also it makes no sense to say that there exists an “idealess expression”. It doesn’t matter how the case laws are presented, the theme to create a difference between ideas from expression does not help the courts in deciding the case in any manner. The dichotomy should not be between the expression and ideas but two forms of expression i.e. protected and unprotected expression. The only relevant theory that would aid the courts in determining the cases is differentiating protected and unprotected expressions are originality and creativity of the expression. When we apply the idea/expression dichotomy, the writings whose ideas and expression merge are not protected. Whenever an expression of writing is distinguished from the ideas, the ideas would always fall under the unprotected category. The problem with this dichotomy is inherent as the dichotomy does not consider the fact that all ideas have an expression. Secondly, it is obvious that the form (expression) and substance (idea) are never completely separable. The myth of the idea/expression has just created further misunderstanding in the eyes of law. Historically, there was no distinction between the two and the copyright law looked towards the originality and creativity of the expression rather than engaging in the dichotomy of ideas/expression debate. At the end of the day, we are protecting the works from infringement. The infringement should be seen from the lens where stealing an author’s original and creative expression is considered infringement and not in terms of stealing an expression rather than the underlying ideas of the work.

In essence, the dichotomy of ideas/expression was itself a product of courts which has made the copyright law more complex as it should have been. There is no certainty in law as the judges got involved in distinguishing the ideas from expression. The essay has unfolded the myth of ideas/expression dichotomy as it should not be the central axiom of copyright law. It should not be the determining factor for the court. The courts are not established to contrast abstract ideas and expression, as these are irrelevant concepts. The copyright doctrine is to create a distinction between protected and unprotected expression. The idea/expression debate has just misled us to an irrelevant debate of distinguishing form from substance where the primary focus should have been on creating a difference between two classes of expression.

References

[1] Sid & Marty Krofft Television Prods. V. Mcdonald’s Corp., 562 F.2d 1157, 1163 (9th Cir. 1977)

[2] 471 U.S. (1985)

[3] Ibid 539, 589 (Brennan, J., dissenting)

[4] W. Patry Latman’s The Copyright Law 30 (6th ed. 1986).

[5] [1916] 2 Ch 601

[6] [1986] FSR 608

[7] Total Information Processing Systems Ltd v. Daman Limited., [1992] FSR 171

[8] Ibcos Computers Ltd v. Barclays Mercantile Highland Finance Ltd., [1994] FSR 275

[9] Richard H. Jones, The Myth of the Idea/Expression Dichotomy in Copyright Law, 10 Pace L. Rev. 551

(1990)

[10] [2013] EWHC 69 (Ch)

[11] Millar v. Taylor 98 Eng. Rep. 201, 242 (K.B. 1769)

[12] 8 F. Cas. 615 (C.C.D. Mass, 1845) (No. 4436)

[13] ibid 619

[14] 111 U.S. 53 (1883)

[15] 23 F. Cas. 201 (C.C.D. Pa. 1853) (No. 13514).

[16] 222 U.S. 55 (1911)

[17] 11 F.2d 690 (2d Cir. 1926)

[18] ibid 691

[19] 347 U.S. 201 (1954)

[20] Ibid 217

[21] The Copyright Act 1976, s 102

[22] 471 U.S. 539 (1985)

[23] Ibid 556