Idea Expression Dichotomy

Image from here

Image from here


By Harshita Agarwal # and Anuj Bedi ##

Intellectual Property is the outcome of the human intellect. It is developed by the human brain using his intellectual skill, labour and creativity. And the Intellectual Property helps an economy in the development economically and culturally. Therefore, it is important to grant them protection in the form of rights. One of the major parts of the Intellectual Property Rights is Copyright. A very prevalent area of discussion in the field of Copyright has been the idea expression dichotomy.

The doctrine enunciates that an idea is not protected under the law but the expression of the idea is protected. Idea is conception of a thought or a theory or a mental image. The expression of the idea has to be original. The idea may be however original or creative but until unless expressed in any form and reduced to writing is not protected. Like in literary works, expression relates to in print or writing. But it also requires that the work has not to be copied from another and the expression shall originate from the author himself.

The Law in the US

The doctrine also exists in the US law.[1] The US law states that there is no copyright protection for an original work of authorship extended to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. It is said to have developed in the US jurisprudence through the case of Baker v Selden[2]. In this particular case, the plaintiff had a copyright over a book which represented a method of double entry book keeping with a peculiar arrangement of headings and columns. The defendant used the similar plan of the book keeping but with a different arrangement of the columns and headings and publishes it. The US Supreme Court ruled in favour of defendant stating that the description of the art in the book (expression in this case) lays no foundation for a claim on the art of book keeping (idea). Also the purpose of publishing a book is to communicate the ideas of the author which can be useful to others. And if that knowledge cannot be used then it would frustrate the whole motive behind publishing a book.



The Law in United Kingdom

The law in United Kingdom can be divided in two stages- before 1911 and after 1911. Before 1911 the law with regard to idea expression dichotomy is identical to the United States of America law but it has been diversified later. Before 1911, the courts were of the opinion that an idea cannot be protected under law and it is the expression of the idea that can be protected. Therefore, developing and expressing on the same idea does not amount to copyright infringement.

After 1911, the court still held on to the law that ideas, thoughts and plans existing mentally in an individual is not a “work” under the Copyright Act. But their expression is protected under the law. A second proviso being that a general idea is not eligible for protection. A detailed or an elaborate proposition or a collection of ideas, pattern of incidents or a compilation of information is subject to Copyright protection. The principle has been well explained in the case of Ibcos Computers Ltd v Barclays Finance Ltd.[3] The Court had said an original work embodying a sufficiently general principle, then the mere taking of that idea would not infringe the copyright.

The UK law has taken the stand as in the above said case that a general principle cannot be protected but it can protect a detailed literary or artistic expression. The rationale behind this that the Courts might have adopted must be that a general principle is available at the common parlance and open to all, thereby, cannot be protected. Anyone can utilize the resources available in the public domain but if somebody utilizes it adds on to it through a detailed expression, then it is subject to copyright protection. This also means that the author if borrowing the idea from somewhere has to put his own substantial amount of skill and creativity.

The Law in India

The idea expression dichotomy in the Indian law has not been specifically stated but has developed through the case laws. In the case of R.G. Anand v Deluxe Films,[4] the Supreme Court had held that there can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.

But the law allows authors or creators to develop on the same idea or plot. The reason being if the authors or creators are restricted to develop on the same idea or plot then there will be no creativity. Before starting anything new they will be more worried if they are not violating any other person’s work.

The basic reasons behind this are two reasons. First, the author or the creator of the work shall be allowed to enjoy his own work economically and morally. Secondly, the protection shall not be such that it hinders further creation. Mere plots and characters cannot be protected otherwise there would not be anything original on the same plot or characters. But such copying, intentional or unintentional shall have substantial creation of his own. The plot and the character can be an inspiration to him. This has been well explained by the Calcutta High Court in Barbara Taylor Bradford v Sahara Media Entertainment Ltd.[5]


At the international level also, the TRIPS convention under Article 9(2) provides that the ideas cannot be protected. This law has been accepted by almost every country through their national legislations. But the Court must take into consideration the protection of those ideas which are not expressed where an individual has put in a large substantial amount of time, skill and effort, like the Delhi High Court had held in the case of Anil Gupta v Kunal Dasgupta[6]. The courts have to be very cautious while distinguishing between the copy of an idea or a plot and an expression of the author. The courts have to be also careful while deciding the distinguishing point between an idea and from where its expression starts. There are no answers to these and no answers can also be set for the above. No exhaustive list can be set for these questions. Therefore, it is upon the courts to decide and provide protection.

#,## Students of University of Petroleum and Energy Studies.

[1] Section 102(b) of US Copyright Law, 1976

[2] 101 U.S. 99 (1879)

[3] [1994] FSR 275

[4] AIR 1978 SC 1613

[5] 2004 (28) PTC 474 (Cal)(DB)

[6] IA 8883/2001 in Suit no 1970 of 2001

Subscribe For Latest Updates

Signup for our newsletter and get notified when we publish new articles for free! One email per day only.