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One of the principle theories under copyright law that
is practiced by both the United States and the United Kingdom is that it does
not protect ideas but only expression of the idea. This approach is what is
known as the idea and expression dichotomy which is probably one of the most
often debated issues under copyright law, as per Professor Samuels: “There is
hardly a single principle of copyright law that is more basic or more often
repeated than the so-called idea-expression dichotomy.” An idea is the
formulation of thought on a particular subject whereas an expression
constitutes the implementation of the said idea. While many persons may
individually arrive at the same idea, they can claim copyright only in the form
of an expression to this idea. Such expression must be specific, particular
arrangement of words, designs or other forms. According to Bentley and Sherman,
this dichotomy developed as far back as in the mid 18th century. The
question posed is whether the absence of the dichotomy would make or break the
influx of creativity.  This paper seeks
to show that the flow of creativity would be minimized if there is no
dichotomy.  Two main points of this work
is to show the rationale of the dichotomy and an idea of a world without it.

            The
most notable early cases in the United Kingdom that dealt with this concept can
be found in Miller v Taylor and Donaldson v Beckett. While the earliest in the
US is the case of Baker v Selden where the courts held that while a copyright
may exist over the publishing and sale of a book, it does not extent to the art
illustrated in the book. The U.S Supreme Court then created a clear distinction
between an idea and its expression, the primary reason being that otherwise, it
would result in providing an undue scope of monopoly to the copyright holder
and would amount to anti-competitive practice.

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            Firstly,
the relevance of the dichotomy in copyright law. Patrick Masiyakurima explains that
the bigger picture to look at is the free speech benefits of the dichotomy such
as the support of widespread circulation of information without fear of reprise
and it encourages self-actualization allowing successive authors to access
untransformed ideas in their works. His next point is that the dichotomy encourages
access to raw materials which are necessary for transformative uses of existing
copyright works and these uses in turn further endorses freedom of expression
by expanding sources of important information.

He goes further by using Baigent v. Random House as
an example, stating that the idea that St Mary Magdalene did more than wipe
Christ’s feet with her tears, which was then deployed in a popular
pulp novel which in turn was transformed into a successful film.

Such transformative use of an existing idea provoked
a wider debate on the portrayal of Jesus’ celibacy in the gospels. Goldstein’s summary
about the rationale for the dichotomy is that is is to avoid waste,
stating that “To give copyright to one author’s disclosure of facts would
require others to rediscover those facts on their own, a wasteful effort that
will produce neither new knowledge nor new art. ” Landes and
Posner examine the dichotomy from the economic angle and note that
the dichotomy is to prevent the idea originator from clinging on to
the idea and seeking rent.

            For
the purpose of due diligence, it would be incomplete to omit the main issue
with 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 Law
Review, this argument partly stems from lack of practical significance in recognizing
such a dichotomy in that it offers “no meaningful guide to
action and is of no use in predicting the decisions of the courts”. Critics
insist that “courts are perpetually engaged in a hopeless quest for distinguishing
idea from expression: the unstoppable in pursuit of the unattainable”. In Designers
Guild, Lord Hoffmann apparently acknowledges the difficulty with the idea/expression division.

He explains through an example of literary copyright that “the original
elements in the plot of a play or novel may be a substantial part, so that
copyright may be infringed by a work which does not reproduce a single sentence
of the original. If one asks what is being protected in such a case, it is
difficult to give any answer except that it is an idea expressed in the
copyright work”. Interesting argument it may be but this paper
will not dwell on the rampant confusion of the distinction between idea and
expressions.

            Moving
on to a world without the dichotomy, two recent cases where the courts totally
ignored the dichotomy would be discussed. In the words of Patrick
Masiyakurima, in both cases, mere emphasis on the protection of labor resulted
in unwarranted protection and produced surprising outcomes that baffle common
sense. Arguably, what was copied in was an idea, and both cases were wrongly
decided. The first case is Temple Island Collections v New English Teas. The
case deals with a photograph of Westminster Bridge with a red bus on it and
with the Houses of Parliament as the background. The defendants were found to
be infringing the claimant’s copyright by taking a similar photo and covering
their goods. Ginsburg points out the error in this judgment as the defendants
copied an idea not an expression. American cases such as Ets-Hokin v Skyy
Spirits or Kenrick v Lawrence, show that copyright of such a scene is
thin because there are very limited ways that this idea can be expressed. In
these cases it was held that only the identical copying taken from an identical
angle should constitute as an infringement. Therefore, given the limited and
restricted choice of the scene, such similarity is inevitable and, as the US
court in Ets-Hokin v Skyy stated, the expression of the idea is
“constrained”.  Patrick applauds the US stating that US
authority certainly has persuasive value. He notes that even when there is
doubt concerning the applicability of the US authorities, similarly English
authorities plainly put it beyond doubt that it is the idea that is copied. It
was ruled in Kenrick that “A square can only be drawn as a square, a
cross 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 drawing
a 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 of
copyright for the subject, which in my opinion cannot possibly be
supported.” 

That observation could not be more appropriately
applied to Temple Island, where the specific placement of the bridge, red
bus and Houses of Parliament is a subject for which no copyright can be
claimed; rather, such a subject is open to anyone to use freely. The next case
which is as troubling as the last is Bodo Sperlein v Sabichi. Similar facts as
Temple except this had to do with the arrangement of branches with berries. In
this case the point of the idea/expression division was not brought
up; rather, the whole judgment hinged on the technical issue of whether the
similarities between the illustrations amounted to infringement and, having
found infringement, what profits were then to be accounted for.

Other objections apart, the main problem here is
that the court failed to consider the idea/expression doctrine in any
form whatsoever; the case was wrongly decided; what was copied was an idea, the
idea of using dark red lines and dots to represent a branch of red berries.

            Patrick
highlights that most commentators who have raised different sorts of problems with
the idea-expression dichotomy have identified that an idea cannot exist apart
from some expression. For the purpose of copyright ability, speaking of an
idealess expression makes no sense, no matter whatever maybe the nature of work
being copyrighted.

Cases such as these that ignore the dichotomy result
in an unfair and highly questionable judgments.

            To
conclude, in the words of Raheel R Daureeawo, ‘The goal of the law of copyright
has always been to promote scientific, literary and artistic creativity and
protect as well as limit these rights in order to prevent monopolies’. The
absence of the idea/expression dichotomy contradicts the essence of copyright
law itself, therefore how can it not stifle. This work does not dispute the valid
arguments and confusion that the dichotomy brings in it’s lack of a clear
distinction between idea and expression. The US and UK both have the same
fundamental copyright principles and the idea/expression dichotomy supports
this , ignoring it or pretending that it is unnecessary would only add to the
confusion it already creates. It’s benefits for the system of Copyright Law far
outweigh the drawbacks and critisms.

 

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