This article has been written by Kaushiki Vatsa pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).

Introduction

In copyright law, the ideas are not protected per se but the ways in which those ideas are projected or manifested are protected. To ensure that generic ideas or ideas that can be expressed in a limited number of ways should not be copyrighted, idea expression dichotomy doctrine and merger doctrine were created. An idea is a suggestion about a particular thing which is generally intangible whereas an expression is the implementation of all the ideas to achieve the desired result (Expressions provide the ideas a tangible form). The main objective behind these two theories is that it is completely possible that many people can come up with the same idea because a broad idea can have many interpretations. If they secure copyright over these ideas then it will lead to offering copyright to the very basic or general ideas or giving monopoly over ideas which will further put censorship and in a way as it will be violating freedom of speech. There should be a free-flow of ideas so that they are present in the public domain for everyone to be used. By this way, ideas can be developed gradually, modified and rectified if necessary. Moreover, if the courts start granting copyright to ideas then the courts will be flooded with these meaningless cases of copyright over ideas.

Idea expression dichotomy

This doctrine has the aim of protecting the ways by which the original or creative ideas of the author/ creator can be manifested, by granting it’s expressions copyright. Dichotomy is basically a fancy term of bifurcation. It helps to differentiate between ideas and expressions as they both are treated differently in copyright law (ideas are not granted copyright but expressions are copyrightable, considering it fulfills all the other elements which are necessary for claiming copyright ). Baker v Selden was the case that established the idea-expression dichotomy in the US (Section 102 (b)– which says that only expressions are protected and not the ideas). Selden argued that he has the copyright in the very underlying method of accounting which he has developed in the book. The Supreme Court said that Selden never demanded copyright for the introductory paragraph of the book but he wanted copyright for his ideas. To which the Supreme Court answered that copyright cannot be extended to the “ideas” and the “art” that has been used in the book but can only be granted to the expressions and not in the underlying method. They added that the sale of the books can be protected by granting them copyright but this copyright cannot be extended to pictures, sketches, figures, drawings or any other pattern that are inside the book. Furthermore, they distinguished between idea and expression as claiming copyright over ideas will give undue advantage to the copyright holder (or monopoly in this case) which will further destabilize the flow of the market as few people will have the whole control.  Over time this distinction has expanded to cover other things as well (Article 9 (2) of TRIPS– apart from ideas, it talks about procedures, method of operation, mathematical concepts). 

In Nichols v Universal Pictures Corp,  the court used the abstraction test. This test basically says that if the two works are similar, then that does not mean that it is copyright infringement. For copyright infringement, the works should be more than just the ideas and  substantial parts of the two works should be similar. The point here is to draw the line where these similarities amount to copyright infringement. Using this test the judges compared the plot, screenplay and the characters of both the work and they were not the same. So, there was no copyright infringement.

In Indian context, there is no section in the Indian Copyright Act of 1957 that expressly excludes ideas from being copyrighted or no substitute of Article 9 (2) of TRIPS but there are several case laws that give us clear ideas. In RG Anand v Delux films the Supreme Court laid down three major propositions regarding idea and expression:

(i) Firstly, ideas, themes, historical facts and subject matter cannot be copyrighted but the ways/ expressions in which those ideas are manifested can claim copyright. 

(ii) Secondly, if the idea is the same then the court will have to determine these similarities. They will have to check whether the similarity between the works is substantial or not and whether a reasonable or a prudent man (substantial similarity test) would find those works similar or not (average viewers’ test). It is important to note that the substantial similarity test is the same as the abstraction test of Nichols v Universal Pictures Corp. The average viewers’ test is an objective test which was criticised heavily because of the fact there are no certain guidelines provided by the court to determine whether the several expressions of the same idea are similar or not. 

(iii) Lastly, if only ideas are the same and the expression is totally different then there is no question of infringement. Before the substantial similarity test, the courts must determine that the two pieces of work should be more than just the ideas and their focus should be on the expressions of the works. The courts in India have followed this judgement for the idea-expression cases. Conventionally, the reason for the ideas to be not copyrightable is that they are very abstract or general. However, It is also important to note that it is not mandatory for the ideas to be abstract. It can be functional, processes, systems, methods and technical but then also it won’t be copyrightable because at the end, they will be ideas only no matter how technical they are (Bikram Yoga Case).

There is another doctrine which is very similar to this doctrine called the Facts-expression doctrine. This doctrine basically tells us that in copyright law only the expressions of the fact are protected and not the facts as such. The same facts for an instance can be taken and expressed differently and when that happens copying these facts is not copyright infringement. Copyright does not care the amount of time and hard work it has taken to obtain these facts but more about the ways in which those facts are expressed or manifested (the pattern in case of newspaper). As stated earlier, the main objective of bifurcation between ideas and expressions is to ensure the protection of free speech in our everyday life interactions.

Merger doctrine

If we are talking in practical terms, sometimes the distinction between the idea and expression is not clear because whenever an expression is copied, the idea behind it is also necessarily copied. There are circumstances where ideas can only be projected or manifested in a limited number of ways. In such a situation, according to the doctrine of merger, ideas and expressions are considered to be merged and neither of them can claim the copyright as the ideas swallow the expression. Expressions will also not be given copyright because granting copyright will give the owner the whole monopoly over the idea as there are a limited number of ways to express those ideas. It is also important to note that the grant of copyright over such a monopoly will be against the public good as it will lead to censorship. This doctrine can be explained well with these two case laws- In Shamoil Ahmad Khan v Falguni Shah & Ors, the court elaborated on how or in what way we should distinguish ideas and expressions. The court said that to achieve the basic idea we should strip away elements of expressions such as themes, plot, settings etc. It is also important to note that this test is criticised by the judges in this case only because there is no way to draw the line with the series of abstractions. In Mattel Inc. v Jayant Agarwalla, the court said that the major task before the court is to separate ideas from expressions (Extraction test). And if this distinction is not clear because that certain idea can only be expressed in a limited number of ways, then the work will not be copyrightable under the doctrine of Merger.

Conclusion

From the above-mentioned information, it is clear that the idea-expression dichotomy has been very intensely used in the United States of America and is very much familiar to Indian Jurisprudence as well. However, there is another side of the story. There are certain times when the idea-expression dichotomy fails to deal with copyright infringement cases. But the courts have continued supporting this doctrine  which led to more confusion. In a practical sense, the courts never examine this doctrine in a detailed manner and even when it is examined properly, it rarely helps in deciding cases. This could be a shock because of the fact that the doctrine has a very general statement to challenge any particular application. This doctrine does not provide any specific mechanism to either put the work in the public domain (for it to be used by all people) or to grant the work copyright and protect author exclusive rights.

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