Handbook on the Economics of Copyright
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Handbook on the Economics of Copyright

A Guide for Students and Teachers

Edited by Richard Watt

Featuring expert contributors from around the world, this book offers insight into the vital theoretical and practical aspects of the economics of copyright. Topics discussed include fair use, performers’ rights, copyright and trade, online music streaming, internet piracy, copyright and visual art markets, and open source publishing. In addition to in-depth coverage of these timely topics, the authors also offer insightful predictions and policy recommendations for the future.
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Chapter 3: The idea/expression dichotomy: friend or foe?

Eleonora Rosati


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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