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63 J. Copyright Soc'y U.S.A. 417 (2016)
Reconceptualizing Copyright's Merger Doctrine

handle is hein.journals/jocoso63 and id is 467 raw text is: 

Reconceptualizing  Copyright's Merger  Doctrine


                        by PAMELA   SAMUELSON*

     Surprisingly little has been written about the merger doctrine of U.S.
copyright law, under which courts sometimes  find original expression in a
work  of authorship to be  merged  with the idea expressed, when   that
idea is incapable of being expressed, as a practical matter, in more than
one or a small number  of ways.' To be true to the principle that copyright
law does not extend its protection to ideas,2 courts have held in numerous
cases that the merged  expression is unprotectable by copyright law.3

*Richard M. Sherman Distinguished Professor of Law, Berkeley Law School. I am
grateful to the Copyright Society of the USA for the opportunity to give the Brace
Lecture on November 2, 2015, on which this article is based. I wish also to thank
Kathryn Hashimoto and Molly Caldwell for excellent research support, and Joseph
Fishman, Paul Geller, Shubha Ghosh, John Golden, James Grimmelmann, Jessica
Litman, Lydia Loren, Mark Lemley, David Nimmer, Tony Reese, and Molly Van
Houweling  for insightful comments on earlier drafts of this article.
  1 Relatively few law review articles have discussed the merger doctrine at any
length. See, e.g., Dan L. Burk, Method and Madness in Copyright Law, 2007 UTAH
L. REV. 587; Shubha Ghosh, Legal Code and the Need for a Broader Functionality
Doctrine in Copyright, 50 J. COPYRIGHT  Soc'Y 71 (2003); Stephen Preonas,
Mergercide, When Good  Copyrights Go Bad: A Recommendation  for a Market-
Based, Defendant-Centric Approach to the Merger Doctrine in the Context of Com-
pilations, 11 INTELL. PROP. L. BULL. 89 (2006); Timothy S. Teter, Note, Merger and
the Machine: An Analysis of the Pro-Compatibility Trend in Computer Software
Copyright Cases, 45 STAN. L. REV. 1061 (1993). These articles consider merger in
relation to specific subject matters.
  2 17 U.S.C. § 102(b) (2012). It is not just abstract ideas, but other unprotectable
elements in works of authorship that may be subject to merger. See infra Part II.F.
§ 13.03[B][3] (2015). The merger doctrine emerged as a common law concept in
the U.S. case law. It is not explicitly recognized in copyright internationally. How-
ever, like the proto-merger cases discussed infra Part II.A., courts in other coun-
tries have used merger-like reasoning in finding that certain elements of works are
unprotectable under copyright law. For example, recently the U.K. Court of Ap-
peal approved a lower court's finding that under the Information Society Direc-
tive, Council Directive 2001/29/EC, 2001 O.J. (L 167), software elements dictated
by technical function do not satisfy the originality requirement. See SAS Inst.
Inc. v. World Programming, Ltd. [2013] EWCA Civ 1482, [31]-[33], http://www.bail
ii.org/ew/cases/EWCA/Civ/2013/1482.html (citing an ECJ opinion in Case C-393/
09, Bezpecnostni softwarovd asociace v. Ministerstvo kultury, [2011] FSR 18, [49],
which concluded that the criterion of originality is not met when the different
methods of implementing an idea are so limited that the idea and the expression
become  indissociable). See also STANLEY LAI, THE COPYRIGHT PROTECTION OF


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