A Critical Review of the Idea/Expression Dichotomy in Copyright Law Agnihotri Amit1,* 1Advocate, THS- The Law Firm, 207, Akashdeep Building, 26A, Barakhamba Raod, Connaught Place, New Delhi-110001, India *Email Id: agnihotri.amit511@gmail.com
Abstract The doctrine of the idea-expression dichotomy is the whole basis of copyright law. This doctrine is mainly based on the premise that, “ideas” that are the fruit of an author's labour goes into the public domain, while only the author's particular expression remains in his control. Those who have studied the idea-expression dichotomy in detail have criticised it, arguing that continued recognition of the dichotomy is neither justified nor helpful in deciding cases of infringement. However, courts have continued to embrace this doctrine and have also extended it to explain related copyright problems, which over the years have also led to confusion. Nevertheless, the courts generally do not examine the doctrine in detail and if ever examined rarely is the doctrine actually decisive of particular cases. Perhaps this should not be surprising, since the doctrine is too general in its statement to challenge any particular application. This doctrine cannot be used predictably to put a particular work either into the public domain or within the author's exclusive rights; instead, it seems to be a retroactive characterisation that justifies an outcome based on other, more concrete, factors. Thus, if the result in a particular case is to be infringement, the work is deemed to be a protectable expression and if the outcome is to be non-infringement, then the work is described as an “idea”. This paper reflects on some difficulties that arise in drawing a distinction between ideas and expressions in practice, leading to serious questions about how copyright laws violate the fundamental right of freedom of speech and expression, which is provided under Article 19 (1) (a) of the Indian Constitution and also under the First Amendment to the Constitution of the United States of America. Top Keywords Idea/Expression Dichotomy, Scenes a Faire Doctrine, Merger doctrine, Originality, Freedom of Speech and Expression, Fair Use. Top |