Breakdown of the ‘Idea- Expression Dichotomy’ Doctrine

The doctrine that, only expressions are Copyrightable and not the underlying ideas, is referred to as ‘idea expression dichotomy’ and is one of the foundation pillars of modern Copyright Law. It is because of this doctrine that non literal expressions could also enjoy a protection. The doctrine has been relied upon by the Indian Courts in a number of decisions (for e.g., see the oft quoted judgment in the case of R.G.Anand v. Delux Films, AIR 1978 SC 1613).

The test to separate the copyrightable expressions from the underlying non copyrightable ideas is referred to as the ‘pattern test’ or ‘abstraction test’ and has emerged from the argument put forward by J. Learned Hand in the case of Nichols v. UniversalPictures Corp., 45 F.2d 119 (2d. Cir. 1930):

Upon any work, ...  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 [or the work] 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 [the author] could prevent the use of his "ideas," to which, apart from their expression, his property is never extended...

In this quest to find out the dividing line between the expression and the underlying idea, Hand asks us to carry out a series of abstractions where each abstraction is coupled with filtration out of Copyrightable expressions. For the sake of clarity, consider the following example:

“Samba, mad with rage, murdered the treacherous Kaliya on that dark moonless night.” [Initial Expression]

First abstraction:

“Samba, mad with rage, murdered the treacherous Kaliya that night.” [Underlying Expression]

Second abstraction:

“Samba, mad with rage, murdered the treacherous Kaliya.” (Expression underlying the Underlying Expression)

Third abstraction:

“Samba, mad with rage, murdered Kaliya.” (Expression underlying the Expression underlying the Underlying expression

Fourth abstraction:

“Samba murdered Kaliya.” [The most general statement of what the initial Expression is about]

Justice Hand regards this ‘the most general statement’ as the idea which is not copyrightable.

However, such an approach presents to us a paradox because aren’t the words, “Samba murdered Kaliya”, too an expression. They are words of English language and language is an instrument of expression. Hence, to say that we have dissected the expression and found out the underlying idea is an absurd statement, for the course of such an exercise, pushes us to the realms of Psychology, which in itself is not an exact science. Because, whatever the idea we think through our faculty of reasoning, logic or aesthetics, as soon as is delivered to the external world, either through speech or pen or paint brush or an act of drama or dance, becomes an expression and no more remains merely a thought or an idea. Thoughts and ideas dwell in the kingdom of the brain and mind but as soon as they are delivered to the outside world, even in the most minuscule, raw and uncreative form, they are expressed, hence transform into an expression. Thus, for the purpose of finding out the underlying idea, telepathy and not ‘pattern’ or ‘abstraction’ test is required. Hence, to me, the doctrine that idea- expression dichotomy is a pillar of Copyright Law, appears to be incorrect. 

The doctrine also appears to be flawed because it makes the whole law subjective and renders unpredictability to the situation. Even if the outcome of a case does not get influenced by personal whims and fancies of the judge, yet in the absence of any bright line rule, the same situations may have different outcome when presented to different judges. The following illustration shall be useful:

Suppose you are the judge and the owner of the copyright in Spiderman approaches your court against the copyright owner in Nagraj alleging that the Naagrassi (Snake rope) coming out of the wrist of Nagraj is substantially similar to the spider web rope coming out of the wrist of Spiderman:

If you apply ‘abstraction’ test on the character of Spiderman to find out when the expression separates from the idea and thus what would be the scope of copyright protection, the following plausible abstractions come out:

Abstraction- Underlying Idea #1:

A rope like structure coming out from the wrist of the Superhero, made up of a material peculiar to the Superhero.

Abstraction- Underlying idea #2:

Use of a rope by the Superhero to swing in the air or to tie enemies.

In the absence of any guiding light or bright line formula, you are free to chose any of the above abstraction as the underlying non copyrightable idea- if you find the former as the idea, then the plaintiff will get a relief but if you find the later as the underlying idea, the defendant would be in a better position.

Then what is the way out? In my humble suggestion, we need to go to the basics of Copyright Law. Perhaps we must look into the creative aspects of the work and if the new work is creatively novel  then the work must enjoy a copyright protection. Hence, rather that traversing backward to abstract the underlying idea, we must keep the initial work (whose copyright has been alleged to have been infringed) as the starting point and then compare the later work with it. If the expression in the later work is creatively different then it is not infringing (Note: Here the degree of creativity must be much higher than the modicum of creativity, Eastern BookCompany v. D.B. Modhak, (2008) 1 SCC 1, because if creative aspects are present only in modicum quantities, then the new work is a mere adaptation).  And this decision, which would be based on the then prevailing facts, and not law should be decided not by judges, but by a jury comprising of artists and critiques in that field and expert evidence should have a great value. 

Author: Tanveer Verma

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.