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3 J. Int'l Com. L. & Tech. 129 (2008)
The Idea-Expression Dichotomy: Indianizing an International Debate

handle is hein.journals/jcolate3 and id is 129 raw text is: Journal of International Commercial Law and Technology THE IDEA - EXPRESSION DICHOTOMY: INDIANIZING AN INTERNATIONAL DEBATE* K.P. Abinava Sankar Student of Law, 3rd year, B.A.B.L(Hons) NALSAR University of Law, Justice City, Shameerpet, Hyderabad, India 500 078 p abinavkyahoo.com. Nikhil L.R. Chary Student of Law, 3rd year, B.A.B.L(Hons) NALSAR University of Law, Justice City, Shameerpet, Hyderabad, India 500 078 nikhil.chary ,gmail.com. Abstract. The idea-expression dichotomy was originally formulated to ensure that the manifestation of an idea is protected rather than the idea itself. Created with the intention of stimulating creativity while at the same time ensuring that such creativity is protected, this concept has come a long way since it was first formulated. However, in developing countries like India, this concept has not yet attained the levels of abstraction that is desirable and there has been little application of this concept in the Indian context. However this position can be expected to change and it is high time the Indian position on this concept is firmly established. 1. Introduction The principle 'the law must keep up with human development and progress' is quite a cliched 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 co- exist 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 * This paper was first published in Kierkegaard, S.(2007) Cyberlaw, Security and Privacy , pp. 93 - 110 129 Vol. 3, Issue 2 (2008)

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