Diritto dell'informazione e della comunicazione - copyright law
Critically analyze the idea/expression dichotomy in copyright law.
The idea/expression dichotomy is traditionally one of the basic topics in copyright law.
This essay will give a definition of the concept and point out why it is considered one of
the main themes in copyright law. The work will proceed with a brief on the
origins of the dichotomy and its philosophical background. Then, the discussion will
move from a theoretical to a pratical perspective and it will concern the judicial
application of the idea/expression division, which has primary importance for the solution
of many infringement controversies. The cases’ reading will demonstrate that the so called
idea/expression dichotomy is not really a dicothomy, a strong division, but a simple line,
which the judges have to draw after a global consideration of the case’s circumstances.
Last but not least, some lines will report the main opinions about the destiny of the
idea/expression dividing line in the digital era.
The concept and its importance
The idea/expression dichotomy is a concept which means that copyright cannot exist in an
idea, but only in its material expression. Copyright, indeed, covers original expression of
ideas, and not ideas themselves. To be protected, the mental process (idea) has to be
materially expressed in a cultural medium, has to be“clothed” in some way. According to
Donoghue v. Allied Newspapers,
judge Farwell, “if the idea, however original, is nothing
more than an idea, and is not put into any form of words, or any form of expression such
as a picture, then there is no such thing as copyright at all” 1
Copyright “does not extend to ideas (...), it is confined to their expression; and if their
expression is not copied the copyright is not infringed” .
Donoghue v Allied Newspapers Ltd  Ch. 106 1937 WL 8075
1 Hollinrake v Truswell
Lord Herschell, in  3 Ch. 420 1894; the Plaintiff claimed copyright in a cardboard
pattern sleeve containing upon it scales, figures, and descriptive words for adapting it to sleeves of any
dimensions, and it was decided that it was not capable of copyright. 1
The non protection of ideas is a long established principle, and it’s deeply connected to the
essence itself of copyright law. The copyright law, indeed, is, as many authors have
pointed out, an “uneasy compromise” between the two divergent principles of the private
authorial rights and the more general public rights, such as free expression The
balance of interests is in the hearth of copyright law, that is all inspired by the exigence of
reconciling protection with public domain. In this perspective, it appears clear that the non
protection of ideas is the most suitable judicial technique to use in order to reconcile these
The origins of the dicothomy. ratio
Many arguments can explain the of the exclusion of ideas from the scope of
According to the natural law doctrine of possession, ideas are incapable of possession. “If
nature has made any one thing less susceptible than all others of exclusive property, it is the action
of the thinking power called an idea ”, as Thomas Jefferson stated.
In terms of law and economics, the exclusive property or monopolization of ideas fights
with the creation of an efficient marketplace for ideas.
Free use of ideas, however, is essential for a democratic society, based on constitutional
Oratio publicata libera est,
rights like freedom of expression. as the Romans said: once the
ideas start circulating in the world, they can be used by everyone. Victor Hugo , clearly
expressed this concept, by saying that as soon as the work is published, “the author is not
any more the master. It is then that other people seize it: call them what you will: human
spirit, public domain, society”. Dear Images: Art, Copyright and Culture
Daniel Mc Clean, “Introduction”, in D. McClean and K. Schubert,
(2002), p. 15.
an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it
forces itself into the possession of everyone, and the receiver cannot dispossess himself of it”
Association Littéraire Internationale.
in the 1870's, in a speech at the
+1 anno fa
I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher melody_gio di informazioni apprese con la frequenza delle lezioni di Diritto dell'informazione e della comunicazione e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Milano Bicocca - Unimib o del prof Vigevani Giulio Enea.
Acquista con carta o conto PayPal
Scarica il file tutte le volte che vuoi
Paga con un conto PayPal per usufruire della garanzia Soddisfatto o rimborsato