Idea-expression divide
Encyclopedia
The idea–expression divide or idea–expression dichotomy limits the scope of copyright
protection by differentiating an idea
from the expression or manifestation of that idea.
The case of Baker v. Selden
was the first U.S. Supreme Court
case to fully explain this doctrine, holding that exclusive rights to the "useful art" (in this case bookkeeping
) described in a book was only available by patent; the description itself was protectable by copyright. In Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985), the Supreme Court stated that "copyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'" (internal citation omitted). Additionally, in Mazer v. Stein, 347 U.S. 201, 217 (1954), the Supreme Court stated "Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself."
Some of the criticism directed at "intellectual property"
is based on the confusion between patent
s, which may confer proprietary
rights in relation to general ideas and concepts per se when construed as methods, and copyrights, which cannot confer such rights.
An adventure novel
provides an illustration of the concept. Copyright may subsist in the work as a whole, in the particular story or characters involved, or in any art
work contained in the book, but generally not in the idea or genre
of the story. Copyright therefore may not subsist in the idea of a man venturing out on a quest
, but may subsist in a particular story which follows that pattern. Similarly, if the methods or processes described in a work are patentable
, they may be the subject of various patent claims
, which may or may not be broad enough to cover other methods or processes based on the same idea. Arthur C. Clarke
, for example, sufficiently described the concept of a communications satellite (a geostationary satellite used as a telecommunications relay) in a 1945 paper that it was not considered patentable in 1954 when it was developed (independently) at Bell Labs
.
In the English decision of Donoghue v. Allied Newspapers Limited (1938) Ch 106, the court illustrated the concept by stating that "the person who has clothed the idea in form, whether by means of a picture, a play or a book" owns the copyright. In the Australian decision of Victoria Park Racing and Recreation Grounds Company Limited v. Taylor (1937) 58 CLR 479 at 498, Latham CJ used the analogy of reporting a person's fall from a bus: the first person to do so could not use the law of copyright to stop other people from announcing this fact.
Some courts have recognized that there are particular ideas that can be expressed intelligibly only in one or a limited number of ways. Therefore even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. In the United States
this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. United States courts
are divided on whether merger constitutes a defense to infringement or prevents copyrightability in the first place, but it is often pleaded as an affirmative defense
to copyright infringement
.
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
protection by differentiating an idea
Idea
In the most narrow sense, an idea is just whatever is before the mind when one thinks. Very often, ideas are construed as representational images; i.e. images of some object. In other contexts, ideas are taken to be concepts, although abstract concepts do not necessarily appear as images...
from the expression or manifestation of that idea.
The case of Baker v. Selden
Baker v. Selden
Baker v. Selden, , was a leading Supreme Court of the United States copyright case cited to explain the idea-expression dichotomy.-Facts:...
was the first U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case to fully explain this doctrine, holding that exclusive rights to the "useful art" (in this case bookkeeping
Bookkeeping
Bookkeeping is the recording of financial transactions. Transactions include sales, purchases, income, receipts and payments by an individual or organization. Bookkeeping is usually performed by a bookkeeper. Bookkeeping should not be confused with accounting. The accounting process is usually...
) described in a book was only available by patent; the description itself was protectable by copyright. In Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985), the Supreme Court stated that "copyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'" (internal citation omitted). Additionally, in Mazer v. Stein, 347 U.S. 201, 217 (1954), the Supreme Court stated "Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself."
Some of the criticism directed at "intellectual property"
Criticism of intellectual property
The societal views on intellectual property include both the positive criticisms and the negative criticisms of intellectual property.Critics of the term "intellectual property" argue that the increased use of this terminology coincided with a more general shift away from thinking about things like...
is based on the confusion between patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s, which may confer proprietary
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
rights in relation to general ideas and concepts per se when construed as methods, and copyrights, which cannot confer such rights.
An adventure novel
Adventure novel
The adventure novel is a genre of novels that has adventure, an exciting undertaking involving risk and physical danger, as its main theme.-History:...
provides an illustration of the concept. Copyright may subsist in the work as a whole, in the particular story or characters involved, or in any art
Art
Art is the product or process of deliberately arranging items in a way that influences and affects one or more of the senses, emotions, and intellect....
work contained in the book, but generally not in the idea or genre
Genre
Genre , Greek: genos, γένος) is the term for any category of literature or other forms of art or culture, e.g. music, and in general, any type of discourse, whether written or spoken, audial or visual, based on some set of stylistic criteria. Genres are formed by conventions that change over time...
of the story. Copyright therefore may not subsist in the idea of a man venturing out on a quest
Quest
In mythology and literature, a quest, a journey towards a goal, serves as a plot device and as a symbol. Quests appear in the folklore of every nation and also figure prominently in non-national cultures. In literature, the objects of quests require great exertion on the part of the hero, and...
, but may subsist in a particular story which follows that pattern. Similarly, if the methods or processes described in a work are patentable
Patentability
Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent...
, they may be the subject of various patent claims
Claim (patent)
Patent claims are the part of a patent or patent application that defines the scope of protection granted by the patent. The claims define, in technical terms, the extent of the protection conferred by a patent, or the protection sought in a patent application...
, which may or may not be broad enough to cover other methods or processes based on the same idea. Arthur C. Clarke
Arthur C. Clarke
Sir Arthur Charles Clarke, CBE, FRAS was a British science fiction author, inventor, and futurist, famous for his short stories and novels, among them 2001: A Space Odyssey, and as a host and commentator in the British television series Mysterious World. For many years, Robert A. Heinlein,...
, for example, sufficiently described the concept of a communications satellite (a geostationary satellite used as a telecommunications relay) in a 1945 paper that it was not considered patentable in 1954 when it was developed (independently) at Bell Labs
Bell Labs
Bell Laboratories is the research and development subsidiary of the French-owned Alcatel-Lucent and previously of the American Telephone & Telegraph Company , half-owned through its Western Electric manufacturing subsidiary.Bell Laboratories operates its...
.
In the English decision of Donoghue v. Allied Newspapers Limited (1938) Ch 106, the court illustrated the concept by stating that "the person who has clothed the idea in form, whether by means of a picture, a play or a book" owns the copyright. In the Australian decision of Victoria Park Racing and Recreation Grounds Company Limited v. Taylor (1937) 58 CLR 479 at 498, Latham CJ used the analogy of reporting a person's fall from a bus: the first person to do so could not use the law of copyright to stop other people from announcing this fact.
Some courts have recognized that there are particular ideas that can be expressed intelligibly only in one or a limited number of ways. Therefore even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. United States courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
are divided on whether merger constitutes a defense to infringement or prevents copyrightability in the first place, but it is often pleaded as an affirmative defense
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
to copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
.
See also
- Feist Publications v. Rural Telephone ServiceFeist Publications v. Rural Telephone ServiceFeist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 , commonly called Feist v. Rural, is an important United States Supreme Court case establishing that information alone without a minimum of original creativity cannot be protected by copyright...
- Ho v. TafloveHo v. TafloveHo v. Taflove was a ruling by the United States Court of Appeals for the Seventh Circuit in 2011 that affirmed a 2009 decision of the United States District Court for the Northern District of Illinois: the expression of ideas can be copyrighted but not the ideas themselves.The plaintiffs alleged...
- Functionality doctrineFunctionality doctrineIn trademark law, the functionality doctrine prevents manufacturers from protecting specific features of a product by means of trademark law. This separates trademarks from patents — trademarks serve to protect a firm's reputation and goodwill, whereas patents serve to protect processes,...
- Scènes à faireScenes à faireScène à faire is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S...
- Stock characterStock characterA Stock character is a fictional character based on a common literary or social stereotype. Stock characters rely heavily on cultural types or names for their personality, manner of speech, and other characteristics. In their most general form, stock characters are related to literary archetypes,...