Project Statement

 

An Epistemological Analysis of the Idea-Expression Dichotomy

 

By 肖俊

 

1 Background

1.1 Overview

It's hard to find a principle of copyright law more basic than the so-called idea-expression dichotomy. That not the ideas themselves but the expression of ideas are copyrightable has been regarded as an axiom in copyright law.

This principle, sometimes described as having constitutional origins, was developed in the common law, and has now been accepted worldwide. The “idea/expression” dichotomy is an American term, while in Europe the same concept is expressed in other ways, such as: copyright only protects form, not content, or, copyright protects only the subjective elements of a work, not the objective elements. Both in the theoretical and practical level, the Anglo-American “copyright” and the European continental “droit de la propriété littéraire/Urheberrecht” share common parts, one of which is the idea/expression dichotomy.

1.2 Statutory Development of the Idea-expression Dichotomy

The idea-expression dichotomy was codified for the first time in 1976 in U.S.A. Section 102(b) of the Copyright Act of 1976 provides: "In no case does copyright protection for an original work of authorship extend 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." The TRIPS and the new WIPO Treaties have confirmed this doctrine in the same way of enumeration.

In most countries of the continental legal system, this doctrine has been usually applied in case law because it is hard to be codified for its vague meaning. As a noticeable exception, Taiwan has prescribed this doctrine in its 1986 copyright law under the influence of the American copyright law and the international treaties.

1.3 Definition and Distinguishing Test

The most difficult problem of this doctrine is how to define the word “idea” and “expression” and make distinction between them. The definition of "idea" in Oxford 's unabridged dictionary takes a full page containing over 4000 words relating to twelve principal "acceptations" and numerous subcategories. Some commentators who have studied the idea-expression dichotomy in the greatest detail have criticized it, arguing that continued recognition of the dichotomy is neither justified nor helpful in deciding cases. Yet, not only have the courts continued to embrace the idea-expression dichotomy, they have extended it to explain related copyright problems, which over the years had also led to confusion.

Given the difficulty of defining the terms of the doctrine, some courts and commentators have developed an "abstractions" test or a "patterns" analysis, which purports to place a given work along a continuum between idea and expression. Although it is impossible to state precisely when a particular work has crossed the threshold from one end to the other, the courts are nonetheless supposed to struggle to apply the terms. The general principle embodied in the idea-expression dichotomy is supposed to help in focusing the inquiry and resolving particular cases in accord with fundamental copyright values.

1.4 The Idea-expression Dichotomy in China

While Copyright Law of the People's Republic China did not proscribe this doctrine, The Regulations for the Protection for Computer Software has proscribed it. However, theory of this doctrine still has not been paid enough attention.

2 Objective

This article does not purport to provide the ultimate definition of idea, but only to introduce an epistemological approach to the analysis of the concept and history of idea-expression dichotomy, and its function in modern copyright law. This article will attempt to elucidate the doctrine of the idea-expression dichotomy and support the proposition that the dichotomy is still useful in the resolution of copyright issues, although the courts must be careful in the application of the doctrine to produce coherent decisions. Further, this article will search to realize the important role of this doctrine in Chinese copyright law and construct this doctrine in modern theory of Chinese copyright law and incorporate it into the statute of continental legal system.

3 Methodology

3.1 Etymological Analysis

The etymology of "idea," in fact, can be traced back to the Greek word "idaea," whose root meaning is equivalent to "beheld" or "seen" and is conceptually related to the Latin term "species," from which the words “specere” and hence "spectator" are derived.

3.1.1 P lato's Theory of Ideas

The concept of "ideas" was introduced in Western philosophy through Plato's dialogues. From a linguistic point of view, Plato's dialogues represent an attempt to explain the significance of common nouns, which play a special role by grouping diverse things instead of differentiating a specific thing from other similar things. Plato, therefore, contended that ideas, unlike objects, cannot exist in time or space; they are rather "eternal" or "timeless". Ideas must be apprehended not through our senses but rather through a process of reflection, creating a gap between the Intelligible World and the Sensible World. This gap parallels the distinction between ideas and expressions. In sum, Plato's ideas can be defined as timeless universal constructs that exist only in the mind. This conception is consistent with the intellectual property theory that ideas are free as air —— that no one should claim ownership in what one has not created but rather belongs to our common intellectual patrimony.

3.1.2 The Tree of Porphyry

The Alexandrian philosopher Plotinus, who wanted to harmonize Plato with Aristotle, contributed to the philosophy of ideas by postulating a hierarchy consisting of the "most real," "most general," "best," and "most beautiful" at the pinnacle and the "most particular," "worst," "unreal," and "ugliest" at the base. Plotinus's pupil, Porphyry, later modified this hierarchy in a way that eventually became standard fare in introductory courses in philosophy. Called the "Tree of Porphyry," the hierarchy began with Substance or Being, divided into Corporeal and Incorporeal; Corporeal was divided into Animate and Inanimate; Animate, into Sensible and Insensible; Sensible, into Rational and Irrational; and Rational, into thinking individuals. Classes were subdivided, appropriately enough, by an analytical technique called dichotomia, "but neither Porphyry nor anyone else ever explained where one was to cut a class in two." The metaphor of the tree summarizes the process of abstraction that has preoccupied philosophers and logicians from Plato to the present.

3.2 Functionalism

Functionalism is the view that the realization of a functional component is not, in some sense, its essence. Rather, what makes a functional component the type it is, is characterized in terms of its role in relating inputs to outputs and its relations to other functional components.

From the traditional view, the idea-expression dichotomy, is a crucial means whereby copyright law limits the scope of the author's entitlement in light of the public domain. The doctrine provides that an author's ideas, no matter how novel, are not subject to copyright protection. Only her expression of those ideas is.

A recent view, On the contrary, holds that copyright law protects expression and not idea, we are free to grant protection to borderline categories of works that combine elements of idea and expression —— since, after all, it is only the expressive elements that are protected. Understood in its historical development and context, the role of the idea-expression dichotomy in copyright law is not a limiting one, but an expansive one.

To different realization of function of this doctrine, we emphasized different components in idea/expression dichotomy. My standpoint is that: The dichotomy's solid theoretical base is in our understanding of the knowledge process. This, in turn, is best understood in the framework of the idea of progress.

3.3 Epistemological Analysis

3.3.1 The classical conception of the creative process and its distinction between an idea and its expression.

The view that the "expression" in a work of art can be distinguished from the "ideas" it expresses can be traced to Plato. The artist or artisan who tried to imitate this "Idea" either by making an image of it or by making the actual object, could never, in Plato's view, truly capture that essence, but only imitate it on a lower level of reality.

Aristotle also distinguished the artist's work from the ideas it reflected. Aristotle believed that the artist or poet should attempt to imitate the universal principles that exist in nature and in human nature in order to educate society about these truths. Thus, a work of art was viewed as distinct from a transcendental essence that could not be captured or possessed but only imitated.

This conception of the nature of the creative process seemed to underlie copyright jurisprudence during the nineteenth century. The critical issue for courts determining copyright infringement was whether the defendant had engaged in independent creation. This can be explained in part by the more limited definition of "idea" that was applied in copyright cases at this time. For example, in Holmes v. Hurst, in discussing the general nature of copyright in a case involving publication without notice, the Supreme Court observed in dictum: more limited definition of "idea" that was applied in copyright cases at this time.

3.3.2 The Romantic View of the creative process and its distinction between an idea and its expression.

The classical conception of the creative process and its distinction between an idea and its expression was challenged during the nineteenth century by art and literary critics and philosophers. The Romantic view changed the way art and artists were perceived. Instead of conceiving of art as imitating universal truths and ideas, the creation of art was seen as a process that reflected the emotions and personality of the individual artist. In addition, art was seen as a symbol of the human unconscious.

To the extent that copyright jurisprudence had relied on the classical distinction between an "idea" and its "expression," that jurisprudence was threatened with obsolescence. If art was no longer viewed as the formal expression of fundamental, abstract ideas, but rather as the expression of the individual feelings of the particular artist, then the view that copyright should protect only the author's specific way of expressing the ideas, but not those fundamental, abstract ideas themselves, had lost its philosophical basis.

The expansion in the scope of copyright is evident in some of the first cases in which authors recovered against defendants who transformed the copyrighted book Ben Hur, Justice Holmes upheld a finding of infringement based on the author's exclusive right to dramatize his own work.

4 Significance

The significance of this research includes two aspects.

First, this research helps to improve the understanding of the idea/expression doctrine. Only on the basis of better understanding of the development of the philosophical signification of this doctrine and how philosophy and law influence each other, can we draw a proper line between idea and expression in judicial practice.

Second, this research provides a new insight into the relevant stipulations in the Regulations for the Protection for Computer Software. Finally, an appropriate test for balancing the public and private interests is developed.

5 Limitations of This Research

Because of my linguistical limitation, the materials used in this research are all written in Chinese and English. As the result, the analysis of the relevant legal theory and practice in non-English-speaking countries appears to be not sound enough. To some extent, this may weaken the conclusion of this research.

6 Bibliography

1•  Ding, liying, Copyright Law , Xiamen University Press 2001.

2•  Drassinower, Abraham, A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law , 2003 Canadian Journal of Law and Jurisprudence.

3•  Cruz, Amaury, Comment: What's the Big Idea behind the Idea-Expression Dichotomy? —— Modern Ramifications of The Tree of Porphyry in Copyright Law , 1990 Florida State University Law Review.

4•  Cohen, Amy B., Copyright Law and the Myth of Objectivity: The Idea-Expression Dichotomy and the Inevitability of Artistic Value Judgments .

5•  Shiver, Michael W., Comment: Objective Limitations or, How the Vigorous Application of "Strong Form" Idea/Expression Dichotomy Theory in Copyright Preliminary Injunction Hearings Might Just Save the First Amendment Spring , 2002, 9 UCLA Ent. L. Rev. 361.

6•  Newman, Honorable Jon O., New Lyrics For an Old Melody: the Idea/Expression Dichotomy in the Computer Age , 1999, 17 Cardozo Arts & Ent LJ 691.

7•  Cohen, Amy B. Copyright Law and the Myth of Objectivity: The Idea-Expression Dichotomy and the Inevitability of Artistic Value Judgments , Winter, 1990, 66 Ind. L.J. 175.

8•  Kurtz, Leslie A., Speaking to the Ghost: Idea and Expression in Copyright , May, 1993, 47 U. Miami L. Rev. 1221.

9•  Samuels, Edward, The Idea-Expression Dichotomy in Copyright Law Winter, 1989, 56 Tenn. L. Rev.

10•  Wilde, Edward C., Replacing the Idea/Expression Metaphor with a Market-Based Analysis in Copyright Infringement Actions , 1995, 16 Whittier L. Rev. 793.

•11  Kovach, Karen S., Comment: Computer Software Design: User Interface —— Idea or Expression? Summer, 1991, 60 U. Cin. L. Rev. 161.

12•  McKinney , Adam E., Copyright Protection for Functional Works: Where Does the Fifth Circuit Draw the Line between Idea and Expression , Winter, 1995, 47 Baylor L. Rev. 249.

13•  Englund, Steven R., Idea, Process, or Protected Expression?: Determining the Scope of Copyright Protection of the Structure of Computer Programs , February, 1990, 88 Mich. L. Rev. 866.

14•  Cunningham, Thomas M., Extending Shaw v. Lindheim: Substantial Similarity and the Idea-expression Distinction in Copyright of Non-literary Subject Matter , 1993 The University of Pittsburgh Law Review University of Pittsburgh Law Review , Fall, 1993, 55 U. Pitt. L. Rev. 239.

 

 

 

 

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