Idea-Expression Dichotomy in the Creative Industries

Introduction

In the realm of copyright law and any other law governing the creative industry, the concept of idea-expression dichotomy is most used and repeated principle that has been criticized by many scholars on the ground of vagueness and lack of precision. However, in the court of law, the idea-expression dichotomy has always proved to be one of the most dependable point of law to understand and decide the view of infringement in any creative industries in UK, particularly when seeking law dissertation help. Under the UK law, the creative industry essentially based on the idea-expression dichotomy that states that an idea shall not be protected by law of copyright or patent or any other law of the intellectual property law unless and until the same has been expressed in terms of expression. Hence, in this essay, we shall discuss the influence of the idea-expression dichotomy in the creative industries of United Kingdom and critically assess the influence thereof and critically discuss how such influence of idea-expression dichotomy can be made better.

The concept of Idea-expression dichotomy in UK

The concept of idea-expression dichotomy varies from one country to another and every other country has different means of protecting the idea-expression dichotomy. While some of the countries adopted a stricter version of the idea-expression dichotomy, some countries adapted the lenient version of the concept. United Kingdom fell under the category of having the stricter version of the idea-expression dichotomy before 1911. According to the courts of the United Kingdom, an idea shall not be subjected to any kind of copyright or patent unless such idea has been given a legally approved form of expression. In the case of McCrum v. Eisner, it was held that UK courts of law approves of the stricter approach of the idea-expression dichotomy and thus in case of the creative industries, the UK law only protects a very limited form of artistic expressions that are expressed and preserved following the legal bindings.

The picture started to change after 1911 when United Kingdom jurisdiction started to understand the expanding perimeter of the idea-expression dichotomy and as such the concept or approach was adopted that even though the minds of a man shall not be considered as a ‘work’ or any form of expression, but any rough presentation of such idea shall be considered to have an effective value in case of the copyright law and the previous stricter deduction was removed.

However, it was still postulated that an idea alone shall not provide for any grounds for protection. While the UK jurisdiction unveiled the definition form of prescription, it still needed to be expression in such a way that it shall represent to be an original work of the applicant or the plaintiff and under such circumstance only, the plaintiff shall be able to go to courts to prove any kind of infringement. The same concept was held valid in the case of Donoghue v. Allied Newspapers Ltd., where it was added that in case a person expresses his/her idea of any story or any other artistic idea that comes under the purview of the intellectual property law freely and the other person uses such idea, the former person shall not have any kind of relief in the eyes of law whatsoever.

In the case of L.B. (Plastics) v. Swish Products, it was held by the UK courts that an idea cannot be said to be copyrightable but it also essentially depends on how someone interprets the term idea. Also, in the case of Guild Ltd. V. Russell Williams Ltd., the notion and concept of the idea-expression dichotomy was discussed in details and it was also discussed to what extent, ideas could be preserved under copyright and what would amount to basic interpretation of the expression of an idea under the intellectual property law of the country.

Idea-expression dichotomy under the UK Legislations

Even though many judicial decisions have been tormented with the divided opinion of the dichotomy, the legislation of the United Kingdom has essentially attempted at providing a more classified and explained view of the same under the several legislations that have been enacted since the year of 1988.

Before 1988, there were only one legislation that governed the intellectual property law or the creative industry of the United Kingdom, the Copyrights, Patents and Designs Act, 1988. However, after the year of 1991, the picture changed drastically and along with the 1988 Act, two more new legislations took place – Copyright (Computer Programs) Regulations, 1992 and European Council Directive on the Legal Protection of the Computer Programs, 1991.

Hence, it can be observed that in the post 1991 time period, computer software and intellectual property rights in relation to computer and computer programs were given more priority. With the existence of the computer programs and software thereof, the notion surrounding idea-expression dichotomy became more and more complicated and the debate on the subject became more confusing under the UK judicial. Even though computer work has been marked as literary work under the 1988 Act of UK, the topic as to how the copyright of a computer program can be infringed, triggered controversy.

In the case of Ibcos Computers Ltd. V. Barclays Finance Ltd., it was held that a computer program which has been made by the same developer shall be subject to copyright and the UK court essentially discarded another old ruling that stated that only method of expression shall not be copyrightable. In this instant case, the court essentially held and opined that the component programs of the computer program that is in debate therein are individually subjected to copyright and thus the idea-expression dichotomy took a detailed turn under the United Kingdom’s jurisdiction.

As it has been mentioned that Ibcos Computers Ltd. V. Barclays Finance Ltd. became an extremely important and well-articulated judgement in the realm of idea-expression dichotomy and it also essentially discarded and disregarded several forms of the old rulings on the said subject. With the help of this ruling, it was essentially established and stated that even though an idea exists only at a method of expression and not under any formal legally binding expression that has been ensured by the idea-expression dichotomy, it shall be subjected to copyrightable ideas and the same shall be entertained in the creative industries of UK as well.

Again, following the path of this landmark judgment, in the case of Navitaire Inc. v. Easyjet Airline Company, it was plead by the plaintiff thereof that the idea-expression dichotomy shall be entertained in the case of computer programs or software where it is under a non-textual form and in reference to such case therein, the UK court also explained and elaborately stated how the US an the English law shall vary on the point of idea-expression dichotomy and unlike the US law, the UK court shall not entertain only the collection of commands in a computer program shall not be subjected to copyright system and for the same the UK court also cited the case of Baker v. Selden, and it was essentially held by the court of law that a mere collection of expression of such idea in a computer program which does not produce any substantial part of the actual work therein, shall not be entertained in a court of law.

Hence, while the courts of UK have gone through several versions of the idea-expression dichotomy in reference to the creative industries and artistic world, it was essentially the doctrine of the UK that can be derived from the many case laws that have been cited already. While the United Kingdom essentially values the wider and expanding perimeter of the idea-expression dichotomy, it does not believe on restricting the artistic liberty by taking down every other work because it has borrowed the idea of another piece of work which does not form the substantial part of the original work. Thus, it was held and said that a mere contemplation of idea similar to any other work shall not be covered by the UK law of copyright and it shall not constitute any kind of infringement.

Critical Assessment of the Idea-expression dichotomy under the UK jurisdiction, applied in the creative industry of UK

Based on the abovementioned discussion on the case laws and how the concept of idea-expression dichotomy has formed part of the UK jurisdiction therein, it can be critically stated and assessed that UK has reached a balance on the subject where it does not follow the stricter version of the idea-expression dichotomy but it also does not provide the infringement status to every other copyright of idea, provided that such form of expression does not form any substantial part of the latter work. Hence, if we critically assess and discuss the role of the idea-expression dichotomy under the UK jurisdiction and the creative industry therein, it can be held that United Kingdom provides a balanced concept of both the worlds and therefore provides with a suitable relief for the aggrieved party. UK neither follows the relaxed version of the US idea-expression dichotomy nor the strict version of the Indian jurisdiction as both of the concepts essentially leads to unnecessary copyright strikes and hence in the virtual world, it becomes impossible for people to execute any of their works.

Under the UK law, the creative industry essentially based on the idea-expression dichotomy that states that an idea shall not be protected by law of copyright or patent or any other law of the intellectual property law unless and until the same has been expressed in terms of expression. Even though many judicial decisions have been tormented with the divided opinion of the dichotomy, the legislation of the United Kingdom has essentially attempted at providing a more classified and explained view of the same under the several legislations that have been enacted since the year of 1988.

In critically approaching and analysis the abovementioned concept on the subject provides us with the notion that UK follows a neutral point of view in the case of idea-expression dichotomy and not one particular notion has established pathway to judgment. Each case has been examined under its own color and therefore UK jurisdiction has a wider chance of changing the notion once a new idea comes in or the world changes in terms of the creative industry.

However, in critically assessing the same, it can also be held that the UK’s approach of changing the matter from one case to another, provides the creative industry with a hint of uncertainty and instability. With several landmark judgments where one has discarded the other’s notion, the concept of idea-expression dichotomy under the UK regime is essentially instable and does not provide a stable version to be used in the creative industries.

Conclusion

Hence it can be stated that in critically assessing the concept of idea-expression dichotomy under the realm of the UK jurisdiction, it has a balanced approach with several case laws and legislations but it also provides a sense of instability and no particular version of the notion can be followed as a constant in the creative industry. While it might be a good idea but it has been also criticized immensely to be vague and not conclusive under the English realm.

Looking for further insights on Fair Dealing Provisions in UK Copyright Law? Click here.

BIBLIOGRAPHY

Journals

Ang, Steven. The Idea-Expression Dichotomy and Merger Doctrine in the Copyright Laws of the U.S. and the U.K. (1994). International Journal of Law and Information Technology, Volume 2, Issue 2, pp. 111–153

Matthews, Brander. The Evolution of Copyright (1890). Political Science Quarterly, Vol. 5, No. 4, pp. 583-602

Siebrasse, Norman. “A Property Rights Theory of the Limits of Copyright.” (2001). The University of Toronto Law Journal, vol. 51, no. 1, University of Toronto Press, pp. 1–61

Case Laws

Baker v. Selden, 101 U.S. 99 (1879)

Donoghue v. Allied Newspapers Ltd., (1938) Ch. 106 at 109 (UK)

Designer Guild Ltd. V. Russell Williams Ltd., (2001) F.S.R. 11 HL

Hollinrake v. Truswell (1894) 3 Ch. 420

Harman Pictures N.V. v. Osborne (1967) 1 W.L.R. 723 at 728

Ibcos Computer Ltd. v. Barclays Finance Ltd., [1994] F.S.R. 275

L.B. (Plastics) v. Swish Products, (1979) R.P.C. 551, HL at 629 (UK)

Martin v Kogan [2019] EWCA Civ 1645, [2020] F.S.R. 3 at [34]

McCrum v. Eisner, (1917) 87 L.J. Ch. 99

Navitaire Inc. Easyjet Airline Company, [2004] EWHC 1725