A Guide for Students and Teachers
Elgar original reference
Edited by Richard Watt
Chapter 3: The idea/expression dichotomy: friend or foe?
The idea/expression dichotomy is one of the basic principles of copyright. Yet, its understanding is far from clear, and its application has proved inconsistent. Following an overview of early English and US decisions that dealt with the dichotomy and an explanation of its rationale in both rights-based and incentive-based theories of copyright, this chapter will attempt to highlight the difficulties arising from the application of this principle. As an example of the problems associated with it, an examination of two recent decisions (of the Court of Justice of the European Union and the US District Court for the District of New Jersey, respectively) that have addressed issues pertaining to copyright protection of computer programs will be undertaken. This contribution holds the view that the idea/expression dichotomy does not represent a useful tool to rely on when determining both subsistence of copyright and its infringement. In particular, it is submitted that placing it on a detailed statutory footing cannot obviate the very vagueness of this principle, in that the dichotomy does not represent a truthful reflection of current understanding of copyright, and is actually misleading as to the scope of protection. The chapter concludes by suggesting that copyright discourse should disregard the dichotomy tout court and focus on other principles instead – such as originality – to carry out the tasks which have been traditionally ascribed to the dichotomy.
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