Diritto dell'informazione e della comunicazione - copyright law

The concrete application of the rule. Reality or myth?

Theoretically, the idea/expression division seems to be sufficently determined (since Fichte, who noticed that the use of a writer's own words- expressions- is different from the use of his ideas), but practically it can be difficult to distinguish unprotected ideas from protected expressions of these ideas.

The question has got primary importance for the infringement of copyright. As ideas are not substantial parts of a work, copying the idea is not infringement, while copying expression is infringement. But is it true that all ideas are unprotected? And how does an idea turn into an expression?

If some ideas are protected, is the idea/expression dichotomy still a dichotomy, or is it, nowadays, a myth? What does the distinction between ideas and expressions really mean?

As Lord Hailsham of St. Marylebone said, "it all depends on what you mean by ideas." Donaldson v. Beckett (1774) 2 Cobbet's Parliamentary History

XVII 954: “... what property can a man have in ideas? whilst he keeps them to himself they are his own, when he publishes them they are his no longer. If I take water from the ocean it is mine, if I pour it back it is mine no longer.” Beweis der Unrechtmäßigkeit des Büchernachdrucks, 1793.

7 Section 16(3) of the Copyright Act 1988 provides that, to infringe, an act must be done 'in relation to the work as a whole or any substantial part of it'." Pace Law Review, Jones, Richard H., “The Myth of the Idea/Expression Dichotomy In Copyright Law”, Volume 10, Summer 1990, Number 3, pp. 551-607.

3 Newspaper Licensing Agency

Since the case, actually, it has been pointed out that also ideas are protected if “their expression in the work has involved sufficient of the relevant original skill and labour to attract copyright protection”. The expression test in UK is based on the skill and labour which an idea can involve, as a fruit of

mental creativity, and it seems to correspond to the lockean concept of property considered as the natural right of everyone to possess the fruits of his own job. There are three groups of unprotected ideas. The first group is composed by the simple thoughts which are not expressed in any copyrightable form: this is the most basic significance of the idea/expression division. Designers Guild v. Russell The second group contains, according to Lord Hoffman, Williams, all those ideas which are not connected "with the literary, dramatic, musical or artistic nature of the work": for instance, an inventive concept, in the absence of patent Kleeneze protection, can be used by everyone (the letterbox draught-excluder discussed in Ltd. v. D.R.G. (U.K.) Ltd.). The third group, finally, is composed by all those ideas which are not sufficiently original Keinrick & Co. v. Lawrence and Co.. The substantiality requirement, that

is a qualitative matter, is satisfied13if an idea is sufficiently original in the legal sense (skill and labour test) to be protected bydiscrimencopyright. The line of is the level of abstraction: “ the more abstract and simplethe copied idea, the less likely it is to constitute a substantial part (...).Copyright law tendsfoxes better than hedgehogs”.to protect The interesting metaphore of the foxes and thehedgehog derives from a famous imagine used by Isaiah Berlin to describe the two14L.B. (Plastics) Ltd v. Swish Products Ltd. [1979] R.P.C. 551.in10 Newspaper Licensing Agency Ltd v Marks & Spencer Plc [2001] UKHL 38.11 Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 W.L.R. 2416 (HL)9. Kenrick & Co v Lawrence & Co (1890) L.R. 25 Q.B.D. 99 189013 The hedgehog and the fox, a substantial part of the law of copyright,See Chacksfield, Mark, in European14Intellectual Property Review, 2001. 4extreme sides of the academic

Historians' Research

The hedgehogs can perceive the big force acting beyond the events, and represent abstraction, while the foxes give importance to the details. Without the details, indeed, there are no events and there is no history, such as there is no art at high levels of abstraction. According to this interpretation of the distinction between ideas and expressions, a strong dichotomy does not exist: what we see is a line that depends on the level of abstraction, and that judge has to draw case by case.

This is, however, a problematic solution. The non-protection of ideas, indeed, turns from a rule of public policy into a rule of originality. The risk is a misunderstanding of the reasons that have inspired the rule since its origins, and a consequent misunderstanding of the nature itself of copyright law, that was born not to stop the stimulating circulation of ideas, but simply to protect the authors' forms of expression.

Some Cases: The Level of Abstraction

Anyway, the

The level of abstraction of an idea is the most used parameter to determine if there is or not infringement of copyright. A lot of the cases in which the rule has been applied, concerned an artistic technique or style. Style, in fact, is the equivalent of an idea: if it satisfies the substantiality requirement, Krisarts SA v. Briarfine, it can be protected by copyright. In the court affirmed that even a view or angle that a painter adopts can be distinctive enough to warrant being protected (the case was about a view of Westminister, a well-known subject, in the representation of Bauman v. Fussel which the viewpoint etc. can assume a considerable importance). In 16(1978), the same subject of the representation (two fighting cocks) has been considered irrelevant because it was the equivalent of a naked idea, not clothed by any expression. The same principle inspired a recent and famous decision, about the Da Vinci Code: two The Blood and Grail of the three joint authors of sued Random House, the

Publisher of The Da Vinci Code, Brown's for infringement of copyright. Their action of infringement The Blood and was unsuccesseful because, as Lloyd L.J. said, what Brown had taken from The Modern Law of copyright and design, 3 edn, See Laddie, Hugh in Butterworths, London, 2000, p. 138.

rd15 Krisarts SA v Briarfine Ltd (t/a Lenton Publications) [1977] F.S.R. 55716 5