THE IDEA EXPRESSION DICHOTOMY IN COPYRIGHT LAW

The rudimentary principle of Copyright is the idea expression dichotomy. It states that
ideas are not copyrightable only the expression of a particular idea is. The purpose of this
distinction is to give certainty to authors as to what degree of protection they can
reasonable expect; the same for potential patentees. The distinction was first clearly
defined and discussed in Baker v. Selden.[1] Although there is an epistemological
dimension to ‘idea’ and ‘expression’, the distinction is largely a matter of policy. This is
done keeping in mind the need to balance the right to access and provide incentive,
because after all, the idea of copyright is based on a quid pro quo exchange. Namely, that
the author contributes to the enrichment of society by using his creative potential, and
society in turn, provides her with the incentive to continue doing so by giving her exclusive
control of her work, rather than making it part of the public domain. While the interests of
the author and the public do generally concur, but due to the fact that copyright is
ultimately a kind of property right, there is always the possibility of conflict between those
who have the right and those who don’t. The success of copyright law therefore depends
on how well it is able to ease the potential conflict between author incentive and consumer
access.
Perhaps the best known and most quoted explanation of the idea expression dichotomy is
to be found in Nichols v. Universal Pictures Corp[2], where Judge Learned Hand
proclaimed that nobody has ever been able to fix that boundary between the idea and
expression, and nobody ever can.[3] He pointed out that any work has many levels of
abstraction[4]. This ‘levels of abstraction’ test was developed to differentiate between
ideas and expression. Essentially a literary work can be differentiated into ideas and
expression. An idea can be conceived of in either a very generic sense or it can employ a
high degree of specificity. The abstractions test relies on general similarities between
works that are largely a matter of degree. However, exactly where the idea merges into
expression still has no objective classification. If the level of abstraction at which the works
share the most similarities mainly involves the level of idea or generalities or repeats plot
devices and stock themes common to many works, then the works are similar at a level
where the first author cannot claim protection.
The merger doctrine is applied when it is impossible to distinguish the idea from the
expression; the court is merely trying to prevent the author from monopolising an idea.
However, sometimes, the idea while apparently indistinguishable from the expression, is
also a unique and original one, and it would be a disincentive to creativity to not grant it
protection. The idea/expression dichotomy is a necessary prelude to the merger doctrine,
which is attracted only because idea and expression coincide near-perfectly. Fallacies are
exhibited when visual works (e.g. photographs, paintings and reproductions, etc) are
treated with it. However, does the concept of merger, based on the Idea expression
dichotomy always display desirable results when applied pedantically? Can the idea itself
sometimes not be prominent enough to merit protection? Would applying the merger
doctrine then do justice?
The notion of the idea being prominent and important enough to be identifiable
independent of the expression which is noticible in the decision in Mattel Inc. v. Jayant
Agarwalla[5] where the Delhi High Court applied the merger doctrine to the Scrabble board
game. Such a pedantic approach to the application of the idea- expression dichotomy lead
to the Scrabble board game originally developed by Mattel, not receiving any protection in
the eyes of law.
Thus on one hand, you have the Courts zealously trying to promote originality and on the
other hand stifling it by strictly applying the idea- expression doctrine, without even
enquiring as to the scope, purpose or consequence of the game in question. If originality is
what is to be protected, it might be time for the law and their guardians to review their
unshakable doctrines and make it more pliable to the needs of the time and purpose.

[1] 101 U.S. 99 (1879).

[2] 45 F.2d 119 (2d Cir. 1930).
[3] Id.
[4] Id. As per Judge Learned Hand: “Upon any work, and especially upon a play, a great
number of patterns of increasing generality will fit equally well, as more and more of the
incident is left out. The last may perhaps be no more than the most general statement of
what the play is about, and at times might consist only of its title; but there is a point in this
series of abstractions where they are no longer protected, since otherwise the playwright
could prevent the use of his ideas, to which, apart from their expression, his property is
never extended."
[5] Mattel Inc. v. Jayant Aggarwala, 2008 (38) PTC416 (Del)