This article is written by Ansruta Debnath, a student of National Law University Odisha. This article explores the various aspects of the idea-expression dichotomy of copyright laws.

This article has been published by Diva Rai.

Introduction

The legal doctrine of idea-expression dichotomy is one of the most time-tested doctrines of copyright law, not only in India but in all jurisdictions. It mainly echoes the basic principle of what exactly can be accorded with protection under copyright laws. Because copyright laws were brought about to encourage creativity, this doctrine assumes importance as it is vital to determine what constitutes original creativity worthy of being given legal protection. This article delves into this very concept and explores the various rules and tests that courts across various jurisdictions, namely India, the U.S., and the U.K. have set for distinguishing between ideas and expressions. Moreover, a discussion has been done on the exceptions and fallacies of this doctrine.

Overview on copyright

Copyright involves exclusive ownership over a person’s creation. Copyright is a major aspect of intellectual property law and in India, it is governed by the Copyright Act, 1957 and the Copyright Rules, 2013. The Copyright Rules were revamped in 2013 and replaced the original Copyright Rules, 1958. According to Section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films, and sound recording. For example, books, computer programs are all protected under the Act as literary works. The Statute of Anne, promulgated in England in 1710, was the world’s first copyright legislation. This Act established the notion of the creator of a work as the owner of its copyright for the first time, as well as specified terms of protection.

Distinguishing idea from expression

A very important aspect of copyright laws is that it protects expressions of ideas rather than the ideas themselves. That is, copyright can be sought for the novelty of the way a particular idea is expressed, not only for the originality of the idea itself. This is called the idea-expression dichotomy and is a frequently used legal doctrine in copyright dispute resolution.

This principle recognizes that ideas are abstract and can be common to everyone. What deserves legal protection is the creative way an arctic expresses the said idea. Thus it becomes important to be able to distinguish between ideas and expression. Till now, courts across every jurisdiction have been unable to develop a straight-jacket formula that can properly differentiate between ideas and expression. This is primarily because sometimes there exists a very thin line between the two concepts and thus every case varies according to the specific factual circumstance. However, over time, the theory has vastly developed in common law jurisdictions all of which will be discussed in the next section.

Tests for distinction

India

R.G. Anand v. Deluxe Films (1978)

Indian law on copyright does not specifically mention the idea-expression dichotomy. But the rule got properly established in the Supreme Court’s landmark judgment of R.G. Anand v. M/S Deluxe Films & Ors (1978). However, this is the only Supreme Court case on this matter of idea-expression dichotomy.

Facts

The appellant-plaintiff in this case, R.G. Anand was an Indian playwright who had written and produced the play ‘Hum Hindustani’ in the span of the years 1953-1954. The play had become extremely popular and subsequently, he was contacted by a person called Mr. Mohan Sehgal (second defendant in this case). Mr. Sehgal requested the appellant to send a copy of the play to him because he wanted to contemplate whether it was adequate material to base a movie on. The appellant complied. 

In 1956 a motion picture called ‘New Delhi’ was released which the appellant found to be completely based on his play. But the appellant had not been accorded with any credit in the movie. Accordingly, he filed a suit for damages in the Trial Court of Delhi. The trial court considered numerous concerns and concluded that the appellant was the owner of the copyright in ‘Hum Hindustani’. However, there was no infringement of the appellant’s copyright. The appellant consequently appealed to the Delhi High Court who upheld the decree of the Trial Court. By a special leave petition, the case finally reached the Supreme Court of India.

Outcome 

The play’s major topic was ‘provincialism’ and the narrative concerned people from different provinces (Punjab and Tamil Nadu). The film kept the same idea, merely switching the gender of the main character from the play. The Court first contrasted the play with the film in general terms, concluding that the film’s topic was larger in scope, encompassing both ‘provincialism’ and ‘dowry’. In determining that infringement was not proved, the Court concluded that copyright cannot be obtained over a concept (‘provincialism’ in this case) and that the differences between the two works were significant enough to find that there was no copying of his play’s script. Moreover, a seven-point test for distinguishing an idea from the expression has emerged from this case.

1. There can be no copyright in an idea, subject matter, themes, narratives, or historical or legendary facts, and copyright infringement in such circumstances is limited to the creator of the copyright work’s form, method, arrangement, and presentation of the concept.
2. Where the same concept is developed differently, it is obvious that because the source is shared, parallels are sure to appear. In such a situation, the courts must decide whether the similarities are on basic or significant parts of the style of expression used in the copyrighted work. If the defendant’s work is nothing more than a literal limitation of the original work with a few alterations here and there, it would be a copyright violation. In other words, for the copy to be actionable, it must be significant and material, leading to the judgement that the defendant is guilty of piracy right away.
3. One of the surest and safest tests to determine whether or not there has been a copyright violation is to see if the reader, spectator, or viewer is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original after having read or seen both works.
4. There is no concern of copyright violation if the concept is the same but is presented and treated differently such that the succeeding work becomes an entirely new work.
5. Where, however, apart from the similarities appearing in the two works, there are also significant and wide dissimilarities that negate the intention to duplicate the original and the coincidences appearing in the two works are manifestly accidental, no copyright infringement occurs.
6. As a breach of copyright constitutes an act of piracy, it must be proven by clear and convincing evidence after applying the relevant case law criteria.
7. When the issue is an infringement of a stage play’s copyright by a film producer or director, the plaintiff’s task becomes more difficult to show piracy. It is obvious that, unlike a stage play, a film has a much broader perspective, a wider field, and a larger background in which the defendants might add colour and complexion distinct from the method in which the original work has represented the concept by introducing a variety of situations. Even yet, if the audience leaves the film with the idea that it is mostly a replica of the original play, an infringement of the copyright may be deemed proven.

Lay observer’s test

The lay observer’s test was established in the R.G. Anand Case (1978) and is generally used by courts to distinguish between ideas and expression in any given case. As the name suggests, this test is performed by making an average layman of reasonable intellect peruse the contended works of the plaintiffs and defendants. Their opinion on the similarity or dissimilarity of the works is then taken into consideration while deciding a case. 

Extraction test

This is a nascent test that came about in the case of Shamoil Ahmad Khan v. Falguni Shah & Ors. (2020) In this case, the Bombay High Court observed that a seed of an idea grows into a theme, then into a narrative, and finally into a whole novel with the support of characters and surroundings. It was the amalgamation of all the works that gave the abstract idea its true substance. If the final work is gradually stripped of all the ancillary elements, then the unprotectable idea or abstract can be extracted. The High Court then used this principle in the facts of the case.

Other relevant case laws

1. In Eastern Book Company v. D.B. Modak (2008), the Supreme Court held that the Copyright Act has nothing to do with original ideas and rather with the expression of thought. To claim copyright, the author must produce the work with skill and judgment which may not be creative in the sense that it is novel or non-obvious, but not the product of merely labour and capital. In this way, the Court rejected the American test of “sweat of the brow” and adopted an approach of “skill and judgement with a flavour of creativity”. This creativity is apparent in the expression of a work, not the idea on which the work is based.
2. In Sulamangalam R. Jayalakshmi & Anr. v. Meta Musicals & Ors. (2000), the Madras High Court held there must be an objective similarity between two works to constitute copyright infringement. The Court also quoted the R.G. Anand Case(1978) and used the layman’s observers test in this case.

United States of America

The most authoritative landmark judgment on the dichotomy of ideas and expression in the United States was the U.S. Supreme Court case of Baker v. Selden (1879), which was also one of the first cases to establish this doctrine in the common law. In this case, the plaintiff had authored a book in which he explained a better system of book-keeping (or accounting) through the use of a certain arrangement of columns and headers that made the ledger simpler to read. Baker achieved a similar outcome, but by arranging the columns and titles differently.

The Court ruled that there was a clear distinction between the book as such and the art which the book aimed to illustrate. Accordingly, while there is copyright over the publication and sale of a book, the same could not extend to the concepts and “art” depicted in the book. This ‘concept’ or ‘art’ is equivalent to the notion of ‘idea’ which was different from ‘expression’, something that the published book was the manifestation of. Although this case did not use the terms ‘idea’ and ‘expression’, the primary concept got rooted and was further explained in Mazer v. Stein (1954).

In the case of Computer Associates International Inc. v. Altai Inc. (1992), the court involved was the United States Court of Appeals for the Second Circuit. This Court developed a three-step test to determine the magnitude and scope of the idea-expression dichotomy. The three steps involved in this process are: 

1. Abstraction
2. Filtration
3. Comparison

This test, known as the Abstraction-Filtration-Comparison test, has been used to identify substantial similarities between two creative works. In particular, it has been used to determine whether non-literal elements of a computer program have been copied by comparing the protectable elements of two programs.

One of the most quoted phrases of the celebrated American jurist and legal scholar Justice Holmes is, “Others are free to copy the original, they are not free to copy the copy”. This quote can be another competent standard for the idea-expression dichotomy where the original is the idea and the copy is the expression of the said idea. 

United Kingdom

The House of Lords debated in Designer Guild Ltd. v. Russell Williams (Textiles) Ltd. (2000) what is meant by the assumption that there is no copyright in ideas, and what is the foundation of the idea-expression dichotomy. It was said that all copyright works are based on a concept and that all works are the manifestation of the author’s thoughts as shown by his choice of ways of expression.

A landmark case of the U.K. concerning this topic was Ibcos Computers Ltd. v. Barclays Finance Ltd. (1994). Here the court explained in great depth the extent of applicability of the idea-expression dichotomy in U.K. jurisdiction.

Exceptions 

Doctrine of Merger

The concept of the doctrine of Merger is an exception to the dichotomy theory. This doctrine applies in cases where a distinction between idea and expression cannot be made and says that in such cases, copyright would not apply even to the expression of the idea. This mainly happens when the expression of the idea is intrinsically linked with the idea itself. An Indian authority in this regard is the Delhi High Court case of Mattel, Inc. and Others v Jayant Agarwalla and Ors. (2008). In this case, the Court elaborated on the principle of merger and held that if the idea is such that it becomes the expression or vice versa, copyright over the same cannot be granted because it would end up creating a monopoly over the idea itself.

Scènes à Faire

The term ‘scènes à faire’ means ‘obligatory scene’. This doctrine recognizes that there are certain elements to a particular genre that are intrinsic to it. Thus, for any work in that genre, those elements would be inevitably present. But such a presence cannot be a criterion for copyright infringement. This doctrine originated in the U.S. case of Cain v. Universal Pictures (1942). In this case, it was held that similarities and incidental features that are essential to the atmosphere and spirit of any creative work or activity are not copyrightable for originality.

Limitations to the dichotomy theory

The primary limitation of this theory of idea-expression dichotomy is the fact that sometimes it becomes extremely difficult to distinguish between ideas and expression. Even when that is possible, since there is no well-defined guideline, the application of the rule is largely based on the discretion of the particular courts giving rise to numerous ambiguities. 

The lack of proper rules automatically implies that for a given piece of work, it will be very difficult to determine whether it can be classified as an original expression of an idea or not. Thus complete reliance needs to be placed on precedents. If the relevant case law said that something amounted to infringement, it would be so. Otherwise, it would be a novel expression. If properly and adequately invoked, however, this doctrine definitely can be used to further and encourage the basic aim of copyright law i.e., creativity without fear.

Conclusion

The concepts of idea and expression encompass the fundamental aspect of copyright laws. Properly being able to distinguish between them is remarkably crucial. Multiple judgments have shown that ideas are separate from their expression because the latter is a better testament to a person’s creativity. Consequently, each jurisdiction has tried to develop tests that can easily identify the difference between ideas and expressions. Yet, discrepancies remain. 

The inherent nature of creative work is such that it is never within rigid boundaries. So, even though the doctrine of idea-expression dichotomy is quite vague, the fact is that the courts will never be able to establish absolute, clear-cut guidelines. The entire process, thus, must happen on a case-to-case basis.

References

1. Critical analysis of the idea expression dichotomy in copyright law
2. The Principle of Idea-Expression Dichotomy: A Comparative Study of US, UK & Indian Jurisdictions
3. The Copyright Act in the United States considers three principal requirements that subject matter must be copyrightable
4. What’s the Big Idea behind the Idea-Expression Dichotomy? — Modern Ramifications of the Tree of Porphyry in Copyright Law
5. Idea Expression Dichotomy under Copyright
6. Analyzing the Idea-Expression Dichotomy in Copyright Laws

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