I want to write about these two things in this post. Essentially question how we understand them. So here it goes.
Idea-Expression Dichotomy
Which basically says that an idea is never protected. Only the expression is. So from the same idea different expressions might be drawn out and all these expressions would be protected. Let me try doing it with some Venns.
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| Venn 1 |
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| Venn 2 |
So I am thinking this model seems to assume within itself that some clear cut-distinction between an idea and expression can be made, right? Like one may get an idea and then expression flows from that idea.
But here's another way of thinking. What if the idea and expression are so intimately connected that an idea itself cannot exist without the expression? Because think about this. No idea would ever be revealed or even form itself inside our heads unless we had a sense of expression for it- either literary, or images. Thus in legal terminology even if it is termed idea and expression- what we are probably really doing is distinguishing between two different forms of expressions- one a very basic/primitive expression(idea), the other a more sophisticated expression which apparently involves some labour on the part of the author (expression).
But the distinction still is not so simple. Even the formation of the sophisticated expression is more often than not borne out of the primitive expression. for example often while writing out something, one gets a flash of inspiration not just for the content but also for the expression. Or even when one is not writing. For example, I remember reading some of Ruskin Bond's published diaries where in one entry he had made a list of random sentences which hit his mind (expression) which could be used in a story. "He had a bonfire of a laugh." was one of them. Artists always look for inspiration by browsing other works of art- i.e. sophisticated expressions. (though yet again, the nature of this flash of inspiration is questionable, but going by the parlance of contemporary law, it is safe to term it as an idea.) So thus again, the primitive expression and the sophisticated expression or idea and expression get tangled up. Neither one seems to be able to exist without the other. So rather than expression being a derivative of an idea, shouldn't the Venn diagram look something like this?
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| Venn 3 |
Okay I know...it looks stupid. But I hope I could make my point. That an idea and expression by their very nature cannot be distinguished. There are certain things to be noted here.
1. In our law, it is fully accepted that an expression cannot exist without an idea. Because any expression must have some content~ say a narrative which the idea provides. (the case of poetry might be interesting to analyse in this regard.)
2. However, our law does reckon that an idea and expression are distinct entities, as illustrated by Venn 1.
3. Our law reckons that an idea can exist without an expression- because it is the expressions which are derived from the idea, and not vice versa. In fact the nature of the idea in our law is left somewhat mystical. But it is clear that an idea is not a free floating entity- it belongs to someone, but is left free in the copyright law only for public good and progress (utilitarian concerns), while it is not in other forms
of IP like patents. [How an idea comes to be owned by someone is yet another interesting question. Is it because an idea originates from someone, or because a person mixes his labour with it (ok- this is vague train of thought here- Ignore for reading purpose for this article).]
However, as Venn 3 illustrates, this expression-flowing-from-idea model may not necessarily be true. then how does the law attempt to achieve the idea-expression/primitive-sophisticated expression dichotomy? Of course then law says that all this is a question of fact. It's upto the Court to decide whether infringement has happened or not- that is whether there has been encroachment upon another expression or idea? But that again leaves open how a judge's mind decides the distinction between the two. Which brings me to my second point.
Originality
Originality is not defined again, but is basically the yardstick to distinguish whether the disputed expression is based on an idea or infringement on another's man expression. So the judge determines the distinction by determining whether the sophisticated expression in question is actually original. In RG Anand v. Deluxe Super Cassettes, they laid down that to determine originality, one needs to know whether from a reasonable man's point of view the two expressions seem similar, so that one gives the impression of the other. Now this is as vague as it gets, even discounting the myth of the reasonable man. Any expression is likely to remind someone of a similar content. For example, V for Vendetta gave me an impression of 1984. Now, how is a person supposed to view two expressions supposedly "derived" from the same idea, without getting an impression of the idea? This confusion is really apparent in this article by a leading IP lawyer. The problem really manifests though if an expression is an integral part of an idea (for which I've argued earlier) then it is necessary that any idea will be mixed with one expression or the other, and every expression will thus give an impression of the other expression, because the idea is formed only by the unity of all these expressions.
Paradoxical, quite.
