Idea/Expression Dichotomy

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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,...
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