Diritto dell'informazione e della comunicazione - copyright law

Critically analyze the idea/expression dichotomy in copyright law

Introduction

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 practical 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 dichotomy, 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 stated, "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."

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 [1938] Ch. 106 1937 WL 80751, Hollinrake v Truswell, Lord Herschell, in [1894] 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.)

The non-protection of ideas is a long-established principle, and it’s deeply connected to the essence itself of copyright law. Copyright law, indeed, is, as many authors have pointed out, an "uneasy compromise" between the two divergent principles of private authorial rights and the more general public rights, such as free expression. The balance of interests is at the heart of copyright law, which 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 opposite interests.

The origins of the dichotomy

Many arguments can explain the ratio of the exclusion of ideas from the scope of protection. 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 thin..."