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VOLUME 1: ISSUE 10 || May 2020 ||

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ABOUT US

WHITE BLACK LEGAL is an open access, peer-reviewed and refereed journal provide dedicated to express views on topical legal issues, thereby generating a cross current of ideas on emerging matters. This platform shall also ignite the initiative and desire of young law students to contribute in the field of law. The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario.

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WHITE BLACK LEGAL: THE LAW JOURNAL

4 www.whiteblacklegal.co.in ISSN: 2581-8503 THE PROPOSITION OF IDEA-EXPRESSION DICHOTOMY: A BRIEF STUDY OF US, UK & INDIAN JURISDICTIONS (Author : Arnav Avasthy) ABSTRACT The result of human intellect is Intellectual property, human mind, work and ability of intellectuality has created it, and in this way, the property helps in being developed financially and socially. Thus, within the style of rights it is vital to give them protection. Copyright is the most important element of Intellectual property Rights. In the copyright field the Idea Expression Dichotomy concept is in the current space of dialogue. Idea which can be defines as the mental expression, a theory or a plan. There should be original expression of idea. Until and unless the idea is expressed in any form and get it into writing it’s not protected no matter how original it is. Expression relates to in writing or in print in literary work. Its also important and necessary for intellectual property protection the work or idea has to be authors original it should be copied from anywhere. An idea is the formulation of thoughts on a particular subject whereas expression formulates the implementation of the said idea. Such expression must be systematic arrangements of word, design and other forms. Thus, such doctrine allows for several expression for the same ideas.

Keywords: Copyright, Intellectual Property, Idea and Expression

INTRODUCTION The law of copyright is not about copy of ideas in fact it is about the form of ideas in which they are reproduced. The UK courts prior to the year 1911 adopted the principle that it is only the expression of such idea which is subject to such protection an idea is not subject to copyright protection. While dealing with the question of copying, there was no copyright in mere methods, systems or ideas the principle was that. The extent of copyright was, therefore, restricted which extended only till particular form of expression protection. It was said that copyright to be infringed ff such copying persisted. If defendant adopts and use the plaintiff idea, he would not be liable, no matter howsoever original the idea of the plaintiff may be.

5 www.whiteblacklegal.co.in ISSN: 2581-8503 After the year 1911, thoughts, considerations and plans that were there in a man's mind unless and until they are in any material of writing form and they are not 'works' such thoughts through their material structure, might be powerless to protection of copyright it was pronounced by the courts. Any general thought which is underlying the copyright is not at all subjected to intellectual protection. Like fresh air is free ideas are also and everyone has right to think or breadth. The stand is that if the thought enveloped in the offended party's work is adequately unique, the unimportant taking of the thought won't cause copyright encroachment. In any case, if the thought is turned out to be in some sort of detail by the offended party and in this way the respondent imitates the declaration of that thought, at that point it might be an encroachment. In such a case, it isn't the way to go however its point by point articulation which is said to have been replicated.

A major problem arises when it becomes difficult to demarcate between the idea and its expression. Where an idea and the expression cannot be separated and are said to have merged, such an amalgamation is termed as the doctrine of merger. The doctrine of merger holds that when an idea can only be expressed in a certain way, the expression is not protectable.6 It is also notable that certain expressions an idea could have and short of those expressions the idea would cease to happen. It can also be said that an idea can exist like this also where in a particular form, if expression is changed it would change idea itself. These ideas which are essential are not considered copyrightable by most courts. Merger of this type is called as scenes faire. For further understanding of the idea in the US, UK and we shall discuss the idea expression dichotomy in context of the laws.

IDEA-EXPRESSION DICHOTOMY: THE US APPROACH The idea-expression dichotomy in the United States owes its origin to the ground breaking case of Baker v. Selden 1decided by the US Supreme Court. The plaintiff was the owner of copyright in a series of books explaining accounting system annexed with certain forms consisting of ruled lines and headings, illustrating the said system. The plaintiff alleged that the defendant by making and using account books arranged on accounting system similar to his own infringed his copyright on the system, even though the forms were employed with various pilasters and headings. Deciding in courtesy of the defendant, the US SC held that there was a clear distinction between the books and the art which they intended to illustrate. The description of

1 101 US 99 (1879)

6 www.whiteblacklegal.co.in ISSN: 2581-8503 the art in a book, i.e. the expression, though copyrightable, did not entitle the plaintiff exclusive claim to the art, i.e. the idea in this case. The principle laid in the aforesaid case since then has been followed in later court rulings and also incorporated in the realm of computer software. Copyright law give the exclusive right to computer program authors to distribute copies, replicate them and display and perform his whole life the copyright work adding fifty more years to it.2There are however, some exceptions to this exclusive right such as own use, teaching, research, or scholarship which would not constitute infringement under the principle of . Not just the judicial decisions, that ideas are not protected the statute also recognizes the common law principle. The US Copyright Act defines idea/expression dichotomy in the following words:

“3In 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.”

So far as the application of copyright laws to computer programs is concerned, the US courts have generally maintained that the purpose for which the program was created would constitute the idea and that the mode in which a program operates, controls and regulates the computer in performing various functions such as sensing, gathering, estimating, recollecting and producing gainful info would constitute the expression of the idea. This principle has attracted a mixed response from legal systems and courts across the world. Many authors and commentators have slammed the underlying assumption that a computer program has only one underlying idea which once identified, must be demarcated from everything else in order to qualify as expression. Computer program composition comprises of various sub-processes or sub-programs functioning simultaneously to produce the desired result this fact the criticism takes into account. Sub-programs often take into account their own ideas or goals that might be differ from the whole idea proposed by the inventors which is likely to render the court’s classification of idea and expression ineffective and inadequate.

UK JURISDICTION IDEA-EXPRESSION DICHOTOMY The law of copyright is not about copy of ideas infect it is about the form of ideas in which 4 they are reproduced. The UK courts prior to the year 1911 adopted the principle that it is only

2 US Copyright Act 1976- Sec. 106: A derivative work is defined in 17 U.S.C. 3 Id. at Sec. 102 4 W.R. Cornish, Intellectual Property: Patent, Copyright, Trademark and Allied Rights 28 (Universal Law Publishing Co. Pvt. Ltd, New Delhi, 3rd edition, 2001)

7 www.whiteblacklegal.co.in ISSN: 2581-8503 the expression of such idea which is subject to such protection an idea is not subject to copyright protection . While dealing with the question of copying, there was no copyright in mere methods, systems or ideas the principle was that. The extent of copyright was, therefore, restricted which extended only till particular form of expression protection. It was said that copyright to be infringed ff such copying persisted. If defendant adopts and use the plaintiff idea, he would not be liable, no matter howsoever original the idea of the plaintiff may be. After the year 1911, thoughts, considerations and plans that were there in a man's mind unless and until they are in any material of writing form and they are not 'works' such thoughts through their material structure, might be powerless to protection of copyright it was pronounced by the courts. Any general thought which is underlying the copyright is not at all subjected to intellectual protection. Like fresh air is free ideas are also and everyone has right to think or breadth. The stand is that if the thought enveloped in the offended party's work is adequately unique, the unimportant taking of the thought won't cause copyright encroachment. In any case, if the thought is turned out to be in some sort of detail by the offended party and in this way the respondent imitates the declaration of that thought, at that point it might be an encroachment. In such a case, it isn't the way to go however its point by point articulation which is said to have been replicated. According to Farwell J. in Donoghue v. Allied Newspapers Ltd.

“This at any rate is clear beyond all question, that there is no copyright in an idea, or in ideas. A person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production of which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who clothed the idea inform, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product”.5

Decisions by judicial has proved that even expression of methods which are inseparable and sole can be subject to copyright. In the UK the Computer Programs law of copyright no longer confined to the rulebooks forced by the , Patents and 1988, Designs Act. Post 1991, three legislations are relied upon for deriving the rules and regulations governing copyright of computer programs in the UK jurisdiction. They are: Copyrights, Patents and Designs Act, 1988; European Council Directive on the Legal Protection of Computer Programs, 1991 and

5 Steven Ang, “The Idea-Expression Dichotomy and Merger Doctrine in the Copyright Laws of the U.S. and the U.K.” 2 Int'l J.L. & Info. Tech. 114 (1994)

8 www.whiteblacklegal.co.in ISSN: 2581-8503 Copyright (Computer Programs) Regulations, 19926. Computer programs are classified as literary works under the 1988 Act. Albeit a general thought can't be copyrighted, cases in which the work engaged with communicating such a thought as drawings, composing and so on are contributed, have been held to be instances of copyright encroachment. Such cases include replicating of the nitty gritty articulation of the thought and not simply the thought. The creativity required and insurance presented through it “communication of the idea to the author or the artist or the playwright is the copyright of the person who clothed the idea inform, whether by means of a picture, a play, or a book ,and the owner of the idea has no rights in that product.”

Therefore, to sum up the idea-expression dichotomy in the United Kingdom Copyright regime, it can be inferred that where certain ideas expressed by a copyright work are not original, they are not entitled to copyright protection as the borrowing of such idea would not constitute the taking of a substantial part of the work. Moreover, the skill, labour and judgment allocated must be relevant to the cause. A mere contemplation of an idea similar to the objective sought to be achieved by the computer program, does not fall within the purview of appropriating skill, labour and judgment essential to constitute infringement.

INDIAN JURISDICTION IDEA-EXPRESSION DICHOTOMY The Copyrights Act, 1957 covers all the copyrights issues arising and concerning in India. Howsoever thorough The Copyright Act might characterize or look not a thought nor articulation and on the distinction is likewise silent in the handling of the two. As per as well as the legal aspect, there hasn’t been a lot of advancement in the standard of thought articulation polarity because of inadequacy of case laws.

In front of the Supreme Court the idea-expression dichotomy issue in Deluxe Films vs R.G. ANand,7 case came. In this particular case, the party which was offended, was a low-level play writer and stage play producer claimed that litigant, that use to produce movies from his play had duplicated generous bits converted it into a movie. Copyright violation was alleged by plaintiff. The subject acc. to the litigant was very normal and it wasn’t offended party's unique thought. In choosing the issue, the SC on cautiously analysing, considering and explaining different specialists and case laws, advanced the accompanying recommendations

7 AIR 1978 SC 1613

9 www.whiteblacklegal.co.in ISSN: 2581-8503 1. A copyright can’t be in subjects, thoughts ideas and in plots in these cases the is restricted to structure, thoughts articulation and action by the copyright work maker.

2. Where in an alternate way a alike thought is being crafted. In such cases the courts ought to decide that in the copyrighted work the articulation embraced if with the likenesses are crucial or considerable parts of the method. Respondent work in the event is only an exacting restriction of copyrighted work with certain varieties to a great extent it would adding up to copyrights infringement. At last, to be noteworthy, the replicate should be a considerable one which on the double stimuluses the end that plaintiff is responsible of a demonstration of theft.

3. To decide if the work is infringement of copyright the resulting the safest and surest test is to check by all accounts the observer and watcher that the works is plainly of the sentiment and work looks duplicate.

4. No inquiry of infringement of copyright comes out if the topic is introduced with the aim that the work is turned into a novel work.

5. Apart from the similarities which comes out in 2 works broad and material dissimilarities are also there in 2 works that intention of infringement of copyright becomes negative and the similarity which is there in 2 works is totally a co-incidence.

6. Through clear and solid evidence copyrights infringement must be proved through various tests as described in various case laws as copyright violation is an act of piracy.

7. In the case of directors or film producers the task to prove piracy gets difficult for the plaintiff. A film has a much bigger and broader perspective in comparison to a screen play where in a film the defendant by various ideas give complexion different from the manner in which the idea of copyrighted work is expressed.

During the current time, another measurement as judgment revealing was added to thought articulation division when in the year 2008, the SC concocted the decision of D.B. Modak Vs

Eastern Book Company.8 In his decision court stated that the Act of Copyright doesn't worry with the inventiveness of thoughts, yet with the declaration of ideas. Whether the edited-

8 AIR 2008 SC 809

10 www.whiteblacklegal.co.in ISSN: 2581-8503 duplicated judgement comes into protection of copyright issue, it was being said that no copyright can be claimed on it as the court judgement comes in public domain.

INDIA’S INCLINATION TOWARDS US OR UK JUDICIAL SYSTEM No obvious sign lies with regards to whether Indian courts would be adopting the method which is used by courts of United Kingdom that was set down in the case of Ibcos and Navitaire, or they would embrace the target test procedure advanced and approved by the Courts in America in the case of Altai. One of the vital elements is the likeness of Legal system of India to Law of England which results in discussion amid the relevance of United Kingdom and United States law in the cases of copyright in Indian purview. A significant contrast is there amid the legitimate frameworks in the United Kingdom and the United States. From the Constitution the copyright laws of the United States were emanated in the case of United Kingdom law standards developed by the courts were inception to codification precedent-based. It is important that it is hard to build a crystal-clear difference amid a thought and an articulation. Their choices the courts of America have been hit into focus in making thoughts liberated from copyright security while then again, the courts of Britain have kept up that where the greatness of thought is with the end goal that it gets difficult to differentiate it from its demeanour, at that point such a thought can at present be copyrighted. In evolving strategies the courts of America have been exact for breaking down a PC program and bifurcating it into ventures for acquiring the copyrightable component which is offered distinctly to articulation and not to thoughts, and that itself diagrams their significance in deciding the degree to which plausibility deceives depict the thought from its appearance. Sooner or later of time, the SC should look at and dissect the distinction amid the laws of American and England on the issue of thought articulation polarity and put forth huge attempts to deal with that by creating a legal profession on equivalent. Courts of India have customarily kept the laws of England for copyright law and received a traditionalist methodology by and great. This traditionalist Indian methodology is slanted to ensuring the general public benefits at the expense of the innovator. Interests of society would be influenced much more in the situation wherever an individual is debilitated from creating thoughts than in the one wherein a clever thought has been thought of by somebody and ensured for a recommended period. This has been the prime purpose for the courts of India favouring the customary way to deal with the liberal one as to laws of copyright as a rule.

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CONCLUSION: The above work discussion give a clear image and shows the idea of idea-expression dichotomy of India is still in the initial phase. For every case ruling the courts in India have always referred to the court’s decisions of US or of UK be it in the case of R.G. Anand or any other followed after that. Although court has tried its best to bring the above mention doctrine into play and to some extent it is successful also by making it an important factor in the Copyright . Idea-expression dichotomy in India however couldn’t be a success as the courts in India failed to differentiate amid the laws of England and America which ultimately leaded to contradictions, indecision and differences. Adding to it, the Copyright Act of India not unequivocally characterizing the terms 'thought' and 'articulation' gives off an impression of being another factor which has been keeping down the development of the guideline in India in idea-expression dichotomy

It can be said that in comparison to American law the English law in India finds a greater application and implementation if we go by Anil Gupta vs R.G. Anand case. But American laws cannot be put aside if we look at the perfection through which the courts in America have outlined the ideas of expression and ultimately copyright protection was entitled and finds its mention in the 1976 United States Copyright Act. For all the courts especially for the SC it is vital that they take a look at both laws of America and UK and analyse the cons and pros and after analysing find a middle path which should be having a mix of both American and UK school of thoughts. The courts of India by applying this approach would be able to avoid the extremes approaches which were implemented by United Kingdom and United States.

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PRIMARY SOURCES 1. Copyrights Act, 1957 2. Copyright, Designs and Patents Act, 1988 3. US Copyrights Act, 1976

WEB SOURCES 1. https://heinonline.org/ 2. https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1285 4. http://www.allindiareporter.in/articles/index.php?article=925 5. http://www.jiclt.com/index.php/jiclt/article/viewDownloadInterstitial/50/49

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