The Doctrine of Idea – Expression Dichotomy in India: An Insight on Protection of Unexpressed Ideas in Literary Works

Introduction

The “Idea- Expression Dichotomy” resides at the center of copyright law. It entails the drawbacks of functional claims over copyrighted works.  More specifically, it implies that copyright protection may only be granted over the original expression of ideas and not the ideas themselves, how so original, they may be.

The idea-expression dichotomy was introduced to ensure that the tangible form of an idea (i.e. an expression) is safeguarded rather than the bare idea itself. The doctrine owes its roots in the United States and as a concept is not really alien to Indian jurisprudence. In the U.S. Supreme Court decision of Baker v. Selden[1], which concerned the copyright over an account book Courts have repeatedly opined those ideas per se are not copyrightable; only the expression of an idea is copyrightable, awarded recognition to the doctrine for the very first time.

Articulation of thought on a particular subject can be called an idea, whereas an expression is a mere implementation of the said idea. The Courts are of the opinion that many persons might individually arrive at the same idea, but copyright can be sought only in the form of an expression of this idea. Such expression must be specific and streamlined with proper arrangement of words, designs or other forms.

Thus, we can say this doctrine allows room for multiple expressions to be available for the same idea.   Courts consider this Idea of Expression Dichotomy to be the central axiom of copyright law and consider the doctrine as the perfect tool to decide copyright infringement cases.[2] The authors have tried to discuss this aspect in this study.

History and Purpose

The foundation stone of the idea-expression dichotomy has been laid by the U.S. Supreme Court, through its decision of Baker v. Selden^[3],  concerning copyright over an account book. Selden had authored a book that described an improved system of bookkeeping by a particular arrangement of columns and headings which made the ledger book easier to read.

Baker on the other hand has reached a similar result but using separate means of an arrangement of columns and headings. The court after listening to both of the parties held that while copyright may exist over the publishing and sale of a book, it does not extend to the ideas and “art” illustrated in the book.

The U.S. Supreme Court created one distinct illustration between an idea and its expression, the fundamental reason being that otherwise, it would result in promoting monopoly which would be arbitrary in nature to the copyright holder and which would amount to anti-competitive practice. As once held by Judge Learned Hand in Nichols v. Universal Pictures Corp^[4],  particularly in the context of scripts and plays, that various general patterns fit in different play. It is interesting to quote few words from this very judgment on the conceptualization of the doctrine –

“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.”[5]

It is interestingly mentioned here that –

“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.”[6]

Thus, with the inception of this doctrine, authors and publishers were encouraged to create more works, thereby stimulating and protecting creativity.

Defining the Term “Idea”

Ideas are discussed, debated and deliberated as human mental conceptions, formations or representations, that is depictions. They are not eternal platonic forms, that happen to exist apart from such social human conceptions and are waiting to be thought. Thinking is normally or generally viewed or observed as concept or notion manipulation and therefore, unavoidably includes expressions.^[7] ‘Ideas’ as a category became part of legal history. In the first century of the Judeo-Christian era, Roman Seneca stated that “the best ideas are common property.”

In the eighteenth century in England, Justice Yates expanded this doctrine to include the author’s right to control ideas only prior to revealing them to the public.^[8]

In relation to the current discussion, the term ‘ideas’ is more controversial. Apart from difficulties in general definitions, there is uncertainty about what ideas mean in the copyright sense as well. Even the word by itself is hard to define in one clear sentence, as it encompasses many different meanings. Some general dictionaries suggest that an idea is a conception of a mind or a thought, which is a result of mental understanding, awareness, or activity.

It is especially important to define the term ‘idea’ when one is making a theoretical discussion on intellectual property. It is unanimously agreed by some scholars that a universal definition of intellectual property might begin by identifying it as nonphysical property, and whose value is based upon some idea or ideas.[9]

It is conventionally true, that the term idea can include a vast number of things, starting from everyday ideas, e.g., an idea to see a friend, or cook a meal and ending with more literary ideas, like plots or certain patterns. It is the second idea which are usually important in relation to copyright law, as they are parts of creative processes and it is such ideas that usually resemble the author’s personality in a work.

In concluding the arguments presented by Locke and Descartes, ideas, in the copyright sense, can be referred to as operations of the author’s mind. Apart from such interpretation, it is also possible to refer to ideas as an external object, meaning something that was not necessarily implied by the author but rather concluded by the user’s mind.[10]

Defining the Term “Expression”

The term “expression” is a simpler term in comparison to Idea. The term itself is self-explanatory.  Many English dictionaries have defined “expression” as the act or an instance of expressing or setting forth in words, a particular word, phrase, or form of words, or the manner or form in which a thing is expressed in words; wording; phrasing; or as the way an idea is transformed into words. ^[11]

Nowadays the perception of expression has expanded so it includes not only spoken words, to which this dissertation can be applied, but also music, paintings, books, films, and other copyright-protected works. In this regard, it is argued that an expression usually expresses an idea of some sort, for example, the particular shade of a colour can give more life to the painting or say mere painting on an oil canvas to give more teeth to the original idea, etc.

Indian law does not provide such a precise definition of the term ‘expression,’ however, it is usually derived from the provisions on the subject matter of copyright law, providing that work should be expressed in some manner like it is mentioned in Sec 13 of The Copyright Act of 1976.^[12]

For the purpose of this paper, the definition of ‘expression’ implies forms in which the author’s thoughts and ideas are incorporated so that such can later be communicated to the public. Normally, such expressions in words of copyright law are musical or dramatic works, computer programmes, fictional representations in writing or speech, photographic works, works of fine arts, etc.

In this regard, copyright law understands an ‘expression’ as a fixation of ideas in some material form. In other words, when an author embodies his or her thoughts or ideas from the “mind” into a particular form (a writing, photograph, recording, etc.), this would qualify as an expression in the meaning of copyright law.

Defining the Term “Dichotomy”

Copyright extends its protection to works such as original literary, artistic, musical and dramatic works.  As discussed previously, it is important to note that the protection is only extended to expression and not idea.

Dichotomy literally means distinction. So, Idea- expression dichotomy is concerned with the idea and the expression. An idea fundamentally is intangible and abstract in nature and it is the expression that gives it a tangible form, making it eligible for protection.

It is because the same abstract idea can be expressed in numerous forms of expression and if the ideas are copyrighted along with the expression apart from the original creator of the work, nobody else would be able to formulate its own expressions on the basis of the same idea.

Thus, such a scenario would diminish the entire need for encouragement and due rewards when it comes to creativity and thereby granting copyright. Justice Brennan believes that the distinction between protected expressions and unprotected ideas is at the essence of copyright.[13]

In India, the Idea of expression dichotomy as a concept first saw its inception through the case of R.G. Anand v. Delux Films & Ors ^[14] and further the same ratio has been repeated in the cases of XYZ Films LLC v. UTV Motion Pictures ^[15], Mansoob Haider v. Yashraj Films Pvt. Ltd^[16] and Shamoil Ahmed Khan v. Falguni Shah ^[17].

Idea and Expression: Protection of Copyright

Intellectual properties are the outcomes of human intellect. It is basically a brainchild reeking of one’s own original ideas. As we all know, intellectual properties act as a boon to the world’s economy and advancement in general. Hence, such creation and work need well-deserved statutory protection.

One of the major parts of Intellectual Property Rights is copyright. Further, an integral realm of discussion in the field of copyright has been the Idea expression Dichotomy doctrine. Under Indian law, copyright law protects the expression of ideas rather than the original ideas themselves. If we dive deeper into The Copyright Act 1957, copyright protection is conferred on literary, musical, dramatic, artistic works and cinematograph films and sound recordings.[18]

The Copyright Act, 1957 has dealt with works in which copyright subsists. If we examine Copyright Act 1957^[19], we will get to see the rights of the owner of copyright in respect of their artistic works, like how to reproduce the work by storing it in particular mediums, issue copies and so on. So, the copyright of an artistic work is only infringed by the unlawful reproduction of it, without the consent of the parties. We have already seen that the Courts till that fail to protect the ideas, and hence to date, there is no copyright protection over ideas.

The law concerning copyrights in India has been substantively dealt with under the Copyright Act 1957. It is clearly stated in the Statute that a person shall not be entitled to any form of copyright otherwise than a right in accordance with the provisions of this Act or any other law for the time being in force.^[20] Section 13 of the Act defines the scope of the existence of copyrights by stating exactly what copyright is available while Section 14 defines the meaning of copyright.

The Copyright Act ^[21] provides for the registration of copyrights with the registrar of copyrights in India though there is no provision that makes registration compulsory.

The Act also deals extensively with what exactly amounts to a breach of copyright and has defined a computer program to come within the ambit of a literary work. ^[22] Though the Act may seem exhaustive, the Act fails to define either an idea or an expression and any difference in the treatment of the two while there has also been a relative dearth of case-law concerning the idea-expression dichotomy.^[23]

There exists no copyright in ideas. It is only when the idea is expressed in a secured form, that it can be granted a copyright. An ‘Idea’ is the formulation of thought on a particular subject, whereas an expression constitutes the implementation of the said idea.

So, basically, even if a number of people come up with a similar idea, protection shall always be granted to the one who has implemented the idea in some form of expression.  Such expression must be explicit, with particular preparation of words, designs, or other forms. Thus, this doctrine is utilised to protect multiple forms of the same idea. ^[24]

Many artists may have the same idea for a portrait. However, the way they express themselves, that is, the way they put down their idea in a tangible form, is what makes a difference. So basically, the artist who is able to paint the portrait first will be liable to get copyright over their artistic work, which is the painting in such a case. The other artists may have formulated the idea of the same first, but in the eyes of law, as we have discussed, the Idea to date remains unprotected, and only the ones expressing it, will give the idea its statutory sanctity.

Although a general idea cannot be copyrighted, but when such an idea is expressed in the form of drawings, paintings, writings, etc as discussed above, where human labour is invested, only in such cases such artistic works can be protected and cases can be filed in case of any infringement. Such cases would involve stealing the specific expression of the idea and not the idea itself.

The main reason for granting protection to expressions and not ideas is to protect the free flow of ideas. Ideas are too precious to be copyrighted. The copyrighting of ideas would bring creativity and innovation to a standstill. It is for this reason that the freedom to copy or get inspired by ideas is central to the structure of copyright laws.

Severing Idea and Expression – Is There any Distinction?

Ideas by their very nature are inconceivable without explicit expression and thus, it is futile to talk of an expressionless idea. Even though courts are tasked with distinguishing between idea and expression while deciding copyright infringement.

However, such a task is not easy as in most cases the ideas and expressions are so well mingled that the courts find it difficult to segregate. Essentially, it is important to determine at what point plagiarism ceases to copy an author’s ideas and steals the expression of his ideas.

A very important “feature” of copyright laws is that it adheres to the sole protection of just expressions of ideas and never the ideas themselves. This is called the idea-expression dichotomy and is a frequently used legal doctrine in copyright dispute resolution.

This principle recognizes that ideas are abstract and can be common to everyone. What deserves legal protection is the creative way an arctic expresses the said idea.

Thus, it becomes important to be able to distinguish between ideas and expression. Till now, courts across every jurisdiction have been unable to develop a straight-jacket formula that can properly differentiate between ideas and expression.

This is primarily because sometimes there exists a very thin line between the two concepts and thus every case varies according to the specific factual circumstance. However, over time, the theory has vastly developed in common law jurisdictions all of which will be discussed in the next section.

Tools to Segregate the Distinction Created by the Courts

Though primarily it seems segregating ideas and expressions is an easy task, the reality seems to be different. We can find a plethora of cases proving the same.  But before proceeding, it is essential to determine whether the concerned entire work of Plaintiff enjoys protection under the Copyright Act or not and secondly to investigate whether the portion taken from Plaintiff’s original copyrighted work is authentic or not.

To recognise plagiarism. The uncanny resemblance of events, situations and basic evidence is a need and acts as the most integral piece of evidence for detecting plagiarism. As held in Bobbs- Merril Company v, Isidor Straus and Nathan Straus[25] , regarding the above-mentioned, if the defendant fails to provide any explanation regarding the sources of such similarities, then only the infringement stands vivid as clear as the sky.

The application of the Lay Observer Test is often taken into consideration by the courts for determining uncanny resemblances or similarities.  The Courts have considered this test to be the utmost reliable one when it comes to the detection of infringement.  In this test, the alleged works in question are viewed, read and witnessed by a lay observer. The drawings and conclusions of the lay observer regarding the similarity between both the works in question are considered as the main ground or base to determine the amount of infringement that takes place.

Now let’s focus on the case of R.G. Anand v. M/s Delux Films[26] which enumerated detailed guidelines and carved a fresh base of adjudication for the courts to adhere by.

The Apex Court has comprehensively reviewed the precedents in relation to Idea Expression Dichotomy in both Indian Soil and U.K. Soil and concluded the following-

1. An idea won’t enjoy any copyright protection and thus no copyright claim can be demanded over any subject matter, theme or plot.
2. An artist or an original creator can issue a copyright over their original expression of ideas.
3. When an identical theme is used by two different materials, the scope of resemblance stands high. In such circumstances, the court shall try to find out whether such similarities are on the fundamental side of the mode of expression.

However, proper importance has to be given to the scope of having major dissimilarities which nullify the intention to copy the authentic one. Such dissimilarities won’t attract the eyeballs of infringement.

1. The opinion of the Lay Observer has to be considered after going through both the works in question, whether the subsequent work is a plagiarised version of the original one or not.

Significantly in a plethora of cases in Anil Gupta and Ors v. Kunal Dasgupta and Ors [27] , Shivani Tibrewala v. Rajat Mukherjee[28] etc, we can see the application of R.G. Anand’s Case as a precedent.

In the case of Mansoob Haider v. Yahraj Films Pvt Ltd [29], we can see that the Courts have added another feather to the dichotomy’s cap by considering the details among the fundamental elements of work while determining infringement cases.

The Court has re-asserted the findings of R.G. Anand’s case by observing that infringement shall only subsist were the identical works seem to be fundamental in nature.  Whereas it has to be seen whether the appropriation by the defendant is a material portion of the original work.

Understanding the Tool of Extraction using Facts

The Bombay High Court in Shamoil Ahmed Khan v. Falguni Shah[30] emphasised as well as analysed the concept of “Extraction” which seems to be an incredible way to distinguish an idea from expression. It is observed that it’s impossible to intimate an idea without expressing it in some form or the other.

For determination of what is liable for protection under copyright law, the task of segregating expression from an idea has to be undertaken. Hence, making this case the foundation ground, the test of Notion of Extraction was introduced for the very first time. This extraction test can be used to address the confusion between the idea and its expression, in copyright infringement cases.

Now let’s take a look at the facts of the Shamoil Ahmed Case. The Plaintiff here was the author of a well-known Urdu short story named “Singaardaan”, with notable publications in literary magazines in various translations including English, Marathi, and Punjabi, which includes the issue in question, all over India.

The defendants here are the curators of a web series titled – “Singaardaan”. The Plaintiff here has filed a copyright infringement suit seeking damages and temporary reliefs against the defendants for unlawful usage and telecast of the web series with the exact title “Singaardaan”.[31]

Claims of copying the entire plot, narratives, and names of the characters of the original story by the plaintiff, along with the title name were out forward from the Plaintiff’s end. The defendants on the other side admitted to the usage of a similar name as the title of their web series but vehemently stressed the originality of their work.[32]

As per the submissions made by both parties, it’s evident that the central theme, plot and storyline revolve around a riot, where a Hindu man comes into possession of a Muslim Courtesan’s heirloom vanity case, which he carries back to his home. Following this, his family – His wife and daughter started dressing as courtesan.[33]

On the counter, the defendant stated that excluding the axiom of the plot, namely, from the brothel to his home, a man took away a vanity box amidst happening of the riot which resulted in major changes in the woman’s behaviour, back at his home. Hence the defendant stressed on this stance of the fact that there stands no resemblance between the two works of art.

Hence, a story or adaptation of any idea brought into life through different settings will not end up attracting the eyeballs of infringement of the idea. However, the plots etc, along with the story belonging to the plaintiff and copying of the same won’t be tolerated or allowed.[34]

The Court in the present case observed that though there were diverse features of work separating the defendant’s work from that of the Plaintiff’s, the plot, theme and storyline brewed the same in respect to the Plaintiff’s book.  The Court thus held the defendant guilty of infringing and using Plaintiff’s original work without seeking prior permission.[35]

After carrying out the entire process of Extraction, the Court was successful in finding out the bare idea and held that an idea that a thing or artifact belonging to someone brings out in its user, by its use, a change in appearance or behaviour in line with the one to whom the thing or artifact originally belonged.[36]

Thus, the Court referring to the findings of R.G. Anand’s case, held that the central theme, plot and storyline of the Plaintiff is an expression of a non-protectable idea, liable to get its due protection.

Conclusion

Idea and expression are more like two sides of the same coin. The coin here refers to the self-curated original works and ideas and expressions being their major counterparts. The findings of various high courts have been stringent on the standing that no ideas can be protected, until and unless it is expressed in some form or the other.

In Barbara Taylor Bradford v. Sahara Media Entertainment Ltd, The Calcutta High Court held that copyright law only provides protection to the originality of an expression and not of an idea, under its umbrella. The explanation attached to such a ruling is to keep monopolizing of ideas at bay, to protect the flow of creativity in society as well as to ensure the level of productivity when it comes to various publishing, entertainment industries and so on.

If we study the attitude of the Indian Judiciary regarding the working of the Idea Expression dichotomy, it has not been a completely negative one. The Courts have been successful in defining dichotomy but have showcased patterns of inconsistency when it comes to its application. The Bombay High Court in Shamoil Ahmed Case has addressed the delicate task regarding the applicability of Idea Expression Dichotomy when it comes to copyright infringement suits.

Indian Courts have been successful in safeguarding the unprotected part of an already expressed idea, as discussed Shamoil Ahmed case previously in the paper. But, standing in the 20^th Century, we can’t ignore the need for unexpressed ideas deserving a fair chance of receiving their due protection. Just like computer software piracy, illegal streaming and unauthorized downloads are causing huge decay to major recording houses in India, there’s no guarantee that unexpressed ideas are not being exploited and stolen unlawfully from the original curators.

Hence, the authors are of opinion that Indian courts in the realm of Idea Expression Dichotomy still have a long way to travel in order to secure a balance between protection of originality when it comes to both ideas and expressions in literary works and not just either of them separately.

This article has been contributed by Ritika Mandal (a student at South Calcutta Law College, University of Calcutta, West Bengal) and Souvik Dhar (Assistant Professor, School of Legal Studies, The Neotia University, West Bengal)

References

• Anil Gupta and Ors v. Kunal Dasgupta and Ors. MANU/DE/0790/2002.
• Baker v. Selden, 101 US 99 (1879).
• Bobbs- Merril Company v, Isidor Straus and Nathan Straus, 210 US 339: 52 L Ed 1086 (1907).
• Hughes, J. (1988) ‘The philosophy of intellectual property’, L.J., 77, 287.
• Jones, R., (1990) ‘The Myth of the Idea/Expression Dichotomy in Copyright Law’, L.R., Volume 10, Issue 3.
• Mansoob Haider v. Yashraj Films Pvt. Ltd., 2014 (59) PTC 292 (BOM).
• Nichols v. Universal Pictures Corp, 45 F.2d 119 (2d Cir. 1930).
• G. Anand v. Delux Films & Ors, AIR 1978 SC 1613.
• Samuels, E. (1988) ‘The idea-expression dichotomy in copyright law’, L. Rev., 56, 321.
• Sankar, K. P. (2008) ‘The idea-expression dichotomy: Indianizing an international debate’, Int’l Com. L. & Tech., 3, 129.
• Shamoil Ahmed Khan v. Falguni Shah, 2020 SCC ONLINE BOM 665.
• Shivani Tibrewala v. Rajat Mukherjee, 2020 SCC ONLINE BOM 68.
• The Copyright Act, 1957.
• XYZ Films LLC v. UTV Motion Pictures, 2016 SCC ONLINE BOM 3970.
• Yates, J. (Judge), (1769), 4 Burr. Part IV., 2379: Dissenting in Millar v Taylor.

End Notes

[1] 101 US 99 (1879).

[2] Jones, R., (1990) ‘The Myth of the Idea/Expression Dichotomy in Copyright Law’, P.L.R., Volume 10, Issue 3.

[3] Ibid.

[4] 45 F.2d 119 (2d Cir. 1930).

[5] Ibid.

[6] Ibid.

[7] Supra note 3.

[8]  “Ideas are free. But while the author confines them to his study, they are like birds in a cage, which none but he can have the right to let fly for, till he thinks proper to emancipate them, they are under his own dominion.” – Yates J. (judge), (1769), 4 Burr. Part IV., 2379. Dissenting in Millar v Taylor.

[9] Hughes, J. (1988) ‘The philosophy of intellectual property’, Geo. L.J., 77, 287.

[10] Supra note 2.

[11] Samuels, E. (1988) ‘The idea-expression dichotomy in copyright law’, Tenn. L. Rev., 56, 321.

[12] Supra note 4.

[13] Supra note 2.

[14] AIR 1978 SC 1613.

[15] 2016 SCC ONLINE BOM 3970.

[16] 2014 (59) PTC 292 (BOM).

[17] 2020 SCC ONLINE BOM 665.

[18] S. 13, The Copyright Act, 1957.

[19] S. 14, The Copyright Act, 1957.

[20] S. 16, The Copyright Act, 1957.

[21] S. 44, The Copyright Act, 1957.

[22] S. 51, The Copyright Act, 1957.

[23] Sankar, K. P. (2008) ‘The idea-expression dichotomy: Indianizing an international debate’, J. Int’l Com. L. & Tech., 3, 129.

[24] Ibid.

[25] 210 US 339: 52 L Ed 1086 (1907)

[26] Supra note 22.

[27] MANU/DE/0790/2002

[28] 2020 SCC ONLINE BOM 68

[29] Supra note 24.

[30] Supra note 25.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] Ibid.