Overview Edit

The distinction between idea and expression is one of the most fundamental yet elusive concepts in intellectual property law. Ideas, as such, are neither patentable nor copyrightable.

U.S. patent law Edit

To obtain a patent, the inventor must reduce the principles on which an invention is based to a concrete application. Thus, the photoelectric effect is not patentable, although the design for a particular photovoltaic cell may be.

U.S. copyright law Edit

Similarly, copyright does not protect “[i]deas, abstract conceptions and similar matters, but rather the “manner of treatment, expression, incidents and details . . . ."[1] The distinction is crucial, since a monopoly on ideas might impair the very goals that intellectual property law seeks to promote. If, for example, the idea of combining music and drama were protected by copyright, Gilbert and Sullivan’s plays might well have been the last musicals produced. Instead, we have available a vast and varied range of musical drama.

Despite its importance, the distinction between an idea and an expression is difficult to draw with certainty. Through the years, courts have developed at least two different theories of what the idea-expression dichotomy means. These theories are referred to as the “clear distinction” test and the “abstractions” test.

“Clear distinction” test Edit

Copyright scholars generally regard the case of Baker v. Selden[2] as the wellspring of modern thought on the doctrine of idea and expression. This case concerned an alleged infringement of Selden's Condensed Ledger, or Bookkeeping Simplified, a book that consisted of a series of blank ledger sheets and an introductory essay explaining their use. The unique feature of Selden’s ledger was that, “by a peculiar arrangement of columns and headings, [it] presents the entire operation, of a day, a week or a month, on a single page, or on two pages facing each other in an account book.” In his own account book, the defendant in this case accomplished a result very similar to Selden’s, using a different arrangement of columns and headings.

The Supreme Court, although agreeing that the plaintiff book might be copyrighted, nevertheless drew “a clear distinction between the book, as such, and the art that it is intended to illustrate.” “[N]o one,” said the Court, "would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein.” A copyright in books on medicine, art, or mathematics gives the author an exclusive right to print and publish those books, but the systems, ideas, or methods described in them “are the common property of the whole world” and any author has the right to express or explain them in his own way. Moreover, since copyright, unlike patent, requires no novelty, the grant of an exclusive right in the art described in a book, "when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. . . That is the province of letters patent, not of copyright.”[3]

“Abstractions” test Edit

Courts have interpreted “idea" and "expression" in other ways. The “clear distinction" test distinguished copyright from patent protection, but did not define the scope of copyright protection. If copyright protects only the literal expression adopted by an author, it allows others to escape claims of infringement by changing the original in only trivial or insignificant ways. The courts have avoided this result by treating idea and expression as a continuum of similarity. Thus, in Nichols v. Universal Pictures Corp.,[4] Judge Learned Hand articulated what is now known as the “abstractions test”:

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. . . . [T]here 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. Nobody has ever been able to fix that boundary, and nobody ever can . . . As respects plays, the controversy chiefly centers upon the characters and sequence of incident, these being the substance.[5]

The abstractions test differs subtly from the holding of Baker v. Selden, and points to a confusion in the meaning of idea/expression. The abstractions test relies on general similarities between works that are largely a matter of degree. If, for example, it was alleged that My Fair Lady infringed Pygmalion, one would look to the degree of similarity of expression in the two stories — the plot, the characters and their roles, and the dialog.

The principle articulated in Baker v. Selden, however, concerns the kind of protection afforded a writing, drawing a line at the the manner of expression, and extending to neither the underlying concepts or information expressed, nor to the activities or techniques described. These two analyses — the "abstractions" test and the "clear distinction” test — are often combined into the term "idea/expression," but they are essentially different. Although both limit the boundaries of copyright, each sets that limit in a different way. Neither of these two fundamental copyright principles is particularly applicable to computer processable information.

As noted by the U.S. Supreme Court in Feist v. Rural Telephone:

The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ . . . To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. . . . This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.[6]

References Edit

  1. Loew's, Inc. v. Columbia Broadcasting Sys., 131 F. Supp. 165, 105 U.S.P.Q. (BNA) 302 (S.D. Cal. 1955) (full-text), aff’d, 239 F.2d 532, 112 U.S.P.Q. (BNA) 11 (9th Cir. 1956) (full-text), aff’d per curiam, 356 U.S. 43 (1958).
  2. 101 U.S. 841 (1880) (full-text).
  3. Id. at 842-44 The ruling in Baker is more subtle than it appears at first glance. The work in question was of an explanatory, functional sort. Unlike purely artistic or factual works, the accounting book explained a method or procedure, which thus raised the specter of patent-like protection not present in the case of art or fact. For artistic works in particular, “expression" is not limited to the literal expression of a work, "else a plagiarist would escape by immaterial variations." Nichols v. Universal Pictures Corp., 45 F.2d 119, 7 U.S.P.Q. (BNA) 84 (2d Cir. 1930) (full-text).
  4. 45 F.2d 119 (2d Cir. 1930) (full-text), cert. denied, 282 U.S. 902 (1931).
  5. Id. at 121.
  6. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991) (full-text) (citations omitted).

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