The Idea - Expression Dichotomy: Indianizing An International Debate

• Author: K.P. Abinava Sankar; Nikhil L.R. Chary
• Position: Student of Law, 3rd year, B.A.B.L(Hons) NALSAR University of Law, Justice City, Shameerpet, Hyderabad, India 500 078 kp_abinav@yahoo.com.
• Pages: 129-138

Page 129

1. Introduction

The principle 'the law must keep up with human development and progress' is quite a clichéd one. But it can hardly be described thus, if one were to consider the growing relevance of software and technology in modern times. However on a practical scale, this evolution of the law is often fraught with difficulties given its reliance on principles and practices that have since time immemorial become its essence. So the question that we must consider here is how one needs to go about reconciling these governing standards of the law with the growing need for its evolution so that it is possible for one to encompass computer software protection into the law. It is in this context that this dichotomy between idea and expression has arisen. Thus, if one seeks to understand the problems that we are facing with current copyright law and its application to computer software protection, one must first understand the nature of the afore-mentioned dichotomy between ideas and expression. The essential difference between the two has been classified as the foundation upon which copyright law rests.

Courts have traditionally declined to put forth a straitjacket definition for the term idea. An idea has been described as a thought, as a mental image, as a conception of a theory. In layman terms, an idea can thus be described as a formulation of thought on a particular subject while expression would constitute implementing the said idea. Needless to state, the same idea can have numerous expressions and this is where the issue of copyright arises. If the same idea can be expressed in a number of different ways, a number of different copyrights may coexist and no infringement will result. However, one is faced with a problem when it becomes difficult to delineate between the idea and its expression. Herein lies the idea of merger where an idea and the expression cannot be separated and they are said to have merged. When merger has occurred, the expression may not be copyrighted, because to do so would in effect be copyrighting the idea. However an oft quoted policy concern of this doctrine is that, when the idea and its expression are thus inseparable, protecting the expression in such circumstances would confer a monopoly of the idea upon the copyright owner. At the same time, an idea can also have certain expressions, without which the idea cannot exist. In other words, there can exist an idea where changing the expression of the same in a particular form would, in effect change the very idea itself. Most courts consider these essential ideas not copyrightable, as to copyright them would also, in effect, copyright the idea. This type of merger is sometimes called scenes a faire. Another example of merger is when there are only a very few ways to express a given idea. This is called the 'Idea-expression identity' exception when specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to an infringement.¹ Although the idea/expression dichotomy is such a time-honoured doctrine, it has long been subject to fierce criticisms for its failure to provide practical guidelines underneath its metaphysical surface. The intricacy lies in the fact that very few, if any, works contain exclusively either ideas or Page 130 expressions. Indeed, almost any work can be abstracted into a spectrum of various levels of generality, at one extreme of which is the principal goal or theme of the work and the other extreme is the literary expression.

2. The Law in the United States of America

2. 1 Origins

American copyright literature has usually traced the origin of this dichotomy between idea and expression back to the seminal case of Baker v. Selden. ² In this case, the plaintiff owned copyright in a series of books that explained a bookkeeping system annexed with certain forms consisting of ruled lines and headings, illustrating this system. The defendant was accused of copyright infringement, because it made and used account books arranged on substantially the same system, employing forms with slightly different columns and headings. In ruling in favour of the defendant, the Supreme Court held that there is a clear distinction between the books, as such, and the art, which they intended to illustrate. The description of the art in a book (the expression in the instant case), though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art (the idea) itself. ³

2. 2 Principles of the idea/expression dichotomy in Computer Software under U S Law: -

The afore-mentioned principle that governs the idea-expression dichotomy in the United States has since been incorporated into the software field as well. Copyright grants the author of a computer program the exclusive right to reproduce copies, prepare derivative works, distribute copies, and perform and display the copyrighted work for the period of his life plus fifty years.⁴ These exclusive rights are limited in several important ways however. The purchaser of a copy of a copyrighted computer program may make an archival copy of the program or adapt the program to his own specific needs, if he does so solely for his own use. In addition, the computer program may be used for teaching, research, or scholarship without constituting infringement under the fair use doctrine. As a final limitation, the statutory scheme embodies the common-law limitation that ideas as such are not protected. The Act gives a statutory definition of the idea/expression dichotomy:

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."⁵

In spite of such a provision this dichotomy has remained unsolved. Through an analysis of case law it becomes apparent that the purpose of this statutory definition is merely to restate, in the context of the new single Federal system of copyright, that the basic dichotomy between expression and idea remains unchanged. Thus, the resolution of the most crucial and most elusive question concerning the scope of copyright protection afforded to all works of authorship is solely a matter of judicial discretion.

In the 1980s the National Commission on New Technological Uses of Copyrighted Works (CONTU), created by the Congress to study the application of intellectual property law to computer software, came out with a final report that set forth four goals for copyright in computer programs, which reflect the traditional attempt to balance protection and competition:

1. Copyright should proscribe the unauthorized copying of these works.

2. Copyright should in no way inhibit the rightful use of these works.

3. Copyright should not block the development and dissemination of these works.

4. Copyright should not grant anyone more economic power than is necessary to achieve the incentive to create. ⁶

Although accosted with severe criticism, this explicit recognition of computer programs as literary works under the Act settled the initial question of protection ability, but left the courts to resolve the scope of protection under the Act. In their attempts to be practical, however, courts have erected a framework that protects the time, effort, and money involved in the production of copyrighted material to the exclusion of all else. Thus it is helpful to examine how the courts have filled in the present outline of copyright protection of computer programs. Decisional and statutory laws make it abundantly clear that computer programs expressed in source code can be protected as literary works.⁷ Courts further have held that computer programs expressed in a higher-level language meet the statutory requirements of originality and fixation. The afore-mentioned defence that limited copyright to works designed to be read by lay individuals rather than by machines or experts, ⁸ was rejected by Courts in a line of cases, the most notable being Apple Computer, Inc. v. Franklin Computer Corp. which stated that copyright protection could also be extended to the object code version of a computer program embedded in a ROM. The afore-mentioned decisions are representative of the Court's efforts to protect the object code of the software within Page 131 the definition of a 'literary work' under the Copyrights Act, 1976. This is because the mechanical process of coding from source code to object code has been held to be a product of sufficient mental labour to merit protection, the imprinting of which constitutes 'fixation'.

Similarly the 3rd Circuit Court rejected a claim by the infringers that sought to differentiate 'operating systems' from other computer programs, holding that such a distinction could not be made within the statutory definition of a 'computer program' as operating systems were also responsible for facilitating a computer's interaction with an application apart from managing its internal functions. Thus the instructions that constituted the operating program were held to be subject to copyright.

In so far as the application of copyright laws to software, more specifically, computer programs, is concerned, American courts have traditionally distinguished between idea and expression with reference to the end sought to...