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The idea–expression distinction or idea–expression dichotomy is a legal doctrine in the United States that limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.
Unlike patents, which may confer proprietary rights in relation to general ideas and concepts per se when construed as methods, copyrights cannot confer such rights. An adventure novel provides an illustration of the concept. Copyright may subsist in the work as a whole, in the particular story or characters involved, or in any artwork contained in the book, but generally not in the idea or genre of the story. Copyright, therefore, may not subsist in the idea of a man venturing out on a quest, but may subsist in a particular story that follows that pattern. Similarly, if the methods or processes described in a work are patentable, they may be the subject of various patent claims, which may or may not be broad enough to cover other methods or processes based on the same idea. Arthur C. Clarke, for example, sufficiently described the concept of a communications satellite (a geostationary satellite used as a telecommunications relay) in a 1945 paper that was not considered patentable in 1954 when it was developed at Bell Labs.
Legal origins and status
Philosophically, there is disagreement about the distinction between thought and language. In the past it was often thought that the two could not be separated, and so a paraphrase could never exactly reproduce a thought expressed in different words. At the opposite extreme is the view that concepts and language are completely independent, so there is always a range of ways in which a concept can be expressed.[1]
In the United States, the doctrine originated from the 1879 Supreme Court case of Baker v. Selden.[2] The Supreme Court held in Selden that, while exclusive rights to the "useful arts" (in this case bookkeeping) described in a book might be available by patent, only the description itself was protectable by copyright. In later cases, the Supreme Court has stated that "unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself,"[3] and that "copyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'"[4]
In the English decision of Donoghue v. Allied Newspapers Ltd. (1938) Ch 106, the court illustrated the concept by stating that "the person who has clothed the idea in form, whether by means of a picture, a play or a book" owns the copyright. In the Australian decision of Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) 58 CLR 479 at 498, Latham CJ used the analogy of reporting a person's fall from a bus: the first person to do so could not use the law of copyright to stop other people from announcing this fact.
Today, Article 1.2 of the European Union Software Directive expressly excludes from copyright ideas and principles that underlie any element of a computer program, including those that underlie its interfaces.[5][6] As stated by the European Court of Justice in SAS Institute Inc. v World Programming Ltd., "to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development."[7]
Scènes à faire
Some courts have recognized that particular ideas can be expressed effectively only by using certain elements or background. The French name for this doctrine is Scènes à faire. Therefore, even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. This is true in the United Kingdom and most Commonwealth countries.[8]:54–56
The term "Scenes a faire" means "obligatory scene", a scene in a play that the audience "has been permitted to foresee and to desire from the progress of the action; and such a scene can never be omitted without a consequent dissatisfaction." The term was applied to copyright law in Cain v. Universal Pictures (1942), where the United States District Court for the Southern District of California ruled that "... similarities and incidental details necessary to the environment or setting of an action are not the material of which copyrightable originality consists."[9] The concept has been used by U.S. and U.K. courts.[10] The term is used both in the sense of a scene that follows inevitably from a situation, or a standard scene that is always included in a particular genre of work.[11] Another court said "Under the ... doctrine of scènes à faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea."[12] The concept has been extended to computer software, where some aspects may be dictated by the problem to be solved, or may be standard programming techniques.[13]
In the United States it is recognized that certain background elements are universal or at least commonplace in some types of work. For example, in Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986), the Second Circuit said that in a film about cops in the South Bronx it was inevitable that the scenery would include drunks, stripped cars, prostitutes, and rats. In Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823 (10th Cir. 1993), the Tenth Circuit held that hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, target industry practices and demands, and computer industry programming practices were unprotectable scènes à faire for computer programs. The principle must have a limit, however, so that something is outside the scènes à faire doctrine for South Bronx movies. Perhaps, cockroaches, gangs, and muggings are also part of the South Bronx scène à faire, but further similarity such as the film having as characters "a slumlord with a heart of gold and a policeman who is a Zen Buddhist and lives in a garage surely goes beyond the South Bronx scène à faire. There must be some expression possible even in a cliche-ridden genre."[This quote needs a citation]
Merger doctrine
A broader but related concept is the merger doctrine. Some ideas can be expressed intelligibly only in one or a limited number of ways. The rules of a game provide an example.[14] In such cases the expression merges with the idea and is therefore not protected.[15]
There are cases where there is very little choice about how to express some fact or idea, so a copy or close paraphrase may be unavoidable. In this case, the "merger doctrine" comes into play. The fact or idea and the expression are seen as merged, and the expression cannot be protected. The merger doctrine is typically applied only to factual information or scientific theories, not to imaginative works such as plays or novels where the author has a much broader choice of expression.[16] The merger doctrine has been applied to the user interface design of computer software, where similarity between icons used by two different programs is acceptable if only a very limited number of icons would be recognizable by users, such as an image looking like a page to represent a document.[17] However, in 1994 a U.K. judge in Ibcos Computers v. Barclays Mercantile Finance cast doubt on the merger doctrine, saying he was not comfortable with the idea that "if there is only one way of expressing an idea that way is not the subject of copyright."[18]
United States courts are divided on whether merger prevents copyrightability in the first place, or should instead be considered when determining if the defendant copied protected expression.[19] Only one federal circuit, the Ninth Circuit, has specifically held that merger should be considered a "defense" to copyright infringement,[20] but as of 2019[update] this is not considered an affirmative defense as the plaintiff still carries the burden of proof that infringement occurred.[19]
↑ Lai, Stanley (2000). "Chapter V: The Position of Scenes a Faire in English Law". The Copyright Protection of Computer Software in the United Kingdom. Oxford, England: Hart Publishing. ISBN978-1-84113-087-3.
↑ Ets-Hokin v. Skyy Spirits, Inc.,225F.3d1068, 1082(9th Cir.2000).
Related Research Articles
Software copyright is the application of copyright in law to machine-readable software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article primarily focuses on topics particular to software.
A scène à faire is a scene in a book or film which is almost obligatory for a book or film in that genre. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.
White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1 (1908), was a decision by the Supreme Court of the United States which ruled that manufacturers of music rolls for player pianos did not have to pay royalties to the composers. The ruling was based on a holding that the piano rolls were not copies of the plaintiffs' copyrighted sheet music, but were instead parts of the machine that reproduced the music.
Apple Computer, Inc. v. Mackintosh Computers Ltd. [1990] 2 S.C.R. 209, is a Supreme Court of Canada case on copyright law regarding the copyrightability of software. The Court found that programs within ROM silicon chips are protected under the Copyright Act, and that the conversion from the source code into object code was a reproduction that did not alter the copyright protection of the original work.
Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 is a decision from the United States Court of Appeals for the Second Circuit that addressed to what extent non-literal elements of software are protected by copyright law. The court used and recommended a three-step process called the Abstraction-Filtration-Comparison test. The case was an appeal from the United States District Court for the Eastern District of New York in which the district court found that defendant Altai's OSCAR 3.4 computer program had infringed plaintiff Computer Associates' copyrighted computer program entitled CA-SCHEDULER. The district court also found that Altai's OSCAR 3.5 program was not substantially similar to a portion of CA-SCHEDULER 7.0 called SYSTEM ADAPTER, and thus denied relief as to OSCAR 3.5. Finally, the district court concluded that Computer Associates' state law trade secret misappropriation claim against Altai was preempted by the federal Copyright Act. The appeal was heard by Judges Frank Altimari, John Daniel Mahoney, and John M. Walker, Jr. The majority opinion was written by Judge Walker. Judge Altimari concurred in part and dissented in part. The Second Circuit affirmed the district court's ruling as to copyright infringement, but vacated and remanded its holding on trade secret preemption.
Analytic dissection is a concept in U.S. copyright law analysis of computer software. Analytic dissection is a tool for determining whether a work accused of copyright infringement is substantially similar to a copyright-protected work.
Substantial similarity, in US copyright law, is the standard used to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if copyright infringement were limited to making only exact and complete reproductions of a work. Many courts also use "substantial similarity" in place of "probative" or "striking similarity" to describe the level of similarity necessary to prove that copying has occurred. A number of tests have been devised by courts to determine substantial similarity. They may rely on expert or lay observation or both and may subjectively judge the feel of a work or critically analyze its elements.
Data East USA, Inc. v. Epyx, Inc. 862 F.2d 204, 9 U.S.P.Q.2d (BNA) 1322 was a court case between two video game manufacturers, where Data East claimed that their copyright in Karate Champ was infringed by World Karate Championship, a game created by Epyx. Data East released Karate Champ in arcades in 1984, and the game became a best-seller and pioneered the fighting game genre. The next year, Epyx published World Karate Championship for home computers, which sold 1.5 million copies. Data East sued Epyx, alleging that the game infringed on their copyright and trademark.
The Abstraction-Filtration-Comparison test (AFC) is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have been copied by comparing the protectable elements of two programs. The AFC test was developed by the United States Court of Appeals for the Second Circuit in 1992 in its opinion for Computer Associates Int. Inc. v. Altai Inc. It has been widely adopted by United States courts and recognized by courts outside the United States as well.
Adobe Systems, Inc. v. Southern Software, Inc. was a case in the United States District Court for the Northern District of California regarding the copyrightability of digitized typefaces. The case is notable since typeface designs in general are not protected under United States copyright law, as determined in Eltra Corp. v. Ringer. Since that case, the United States Copyright Office has published policy decisions acknowledging the registration of computer programs that generate typefaces. In this case, the court held that Adobe's Utopia font was protectable under copyright and Southern Software, Inc.'s Veracity font was substantially similar and infringing.
In Canadian copyright law there are several Limitations to Copyright. These limitations define the scope of copyright protection by placing limits on ability of copyright holders to deny other users or creators the ability to employ the ideas, facts, and concepts underlying their protected expression.
Structure, sequence and organization (SSO) is a term used in the United States to define a basis for comparing one software work to another in order to determine if copying has occurred that infringes on copyright, even when the second work is not a literal copy of the first. The term was introduced in the case of Whelan v. Jaslow in 1986. The method of comparing the SSO of two software products has since evolved in attempts to avoid the extremes of over-protection and under-protection, both of which are considered to discourage innovation. More recently, the concept has been used in Oracle America, Inc. v. Google, Inc.
Broderbund Software Inc. v. Unison World, Inc., 648 F. Supp. 1127, 1133, was a United States District Court for the Northern District of California software case, initially important in determining how U.S. copyright law applied to the look and feel presented by a software product. It took an expansive position which later courts increasingly rejected.
Paraphrasing of copyrighted material may, under certain circumstances, constitute copyright infringement. In most countries that have national copyright laws, copyright applies to the original expression in a work rather than to the meanings or ideas being expressed. Whether a paraphrase is an infringement of expression, or a permissible restatement of an idea, is not a binary question but a matter of degree. Copyright law in common law countries tries to avoid theoretical discussion of the nature of ideas and expression such as this, taking a more pragmatic view of what is called the idea/expression dichotomy. The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case.
Cain v. Universal Pictures Co. (1942) was the first case in the United States to define the doctrine of "scènes à faire" as it applies to copyright law. Judge Leon Rene Yankwich introduced the term.
Reyher v. Children's Television Workshop was a case where the author and illustrator of a children's book sued a company that had published a TV skit and a magazine story with a similar title and plot, claiming copyright infringement. The story was based on an old Russian folk tale. The court found that the plot or theme was not subject to copyright, and there had been no infringement since the book and the story or skit were quite different in all other respects. The court used the "total concept and feel" standard in reaching their decision.
Delrina Corporation v. Triolet Systems Inc, 2002 CanLII 11389, 58 OR (3d) 339, also known as Delrina II, is a 2002 Ontario Court of Appeal case which established the existence of the merger doctrine in Canadian copyright law. The plaintiff, Delrina Corp., sued Triolet Systems Inc. and Brian Duncombe for infringing its copyright of the computer program Sysview by designing similar software, called Assess. The plaintiffs were awarded an interlocutory injunction but ultimately lost at trial. Delrina Corp.’s appeal to the Ontario Court of Appeal was dismissed.
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Copyright protection is available to the creators of a range of works including literary, musical, dramatic and artistic works. Recognition of fictional characters as works eligible for copyright protection has come about with the understanding that characters can be separated from the original works they were embodied in and acquire a new life by featuring in subsequent works.
Tetris Holding, LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394, was a 2012 American legal case related to copyright of video games, confirming that a game's look and feel can be protected under copyright law. Tetris Holding is a company that holds the copyright to the original Tetris game from 1985 and licenses those rights to game developers. Xio Interactive is a game developer that released Mino in 2009, a mobile game based on the gameplay of Tetris. Mino was downloaded millions of times, and Tetris Holding filed a DMCA notice and eventually a lawsuit against Xio for copyright infringement.
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