Is There Really An Idea/Expression Dichotomy In Copyright?

from the it's-difficult-to-see dept

Copyright system defenders often trot out the commonly accepted wisdom that copyright does not protect "ideas" and that there's an important "idea/expression" dichotomy, where it's only the specific expression that's protected, not the ideas. However, the reality is that both individuals and courts seem to have a pretty difficult time distinguishing between the two, and always have. While perhaps there's some platonic ideal where it's easy to tell the difference between an idea and the expression of that idea, it's much harder in practice. Recent studies have shown how notoriously difficult this distinction is in practice, leading to serious questions about how copyright violates the First Amendment.

The latest example of this is the ruling banning the publication of the "modern" sequel to The Catcher in the Rye. If there really were a distinction between the idea and the expression, then a sequel would never be seen as infringing, unless it used significant text directly from the original. Yet, in this case, the ban on publication is making some wonder where that mythical idea/expression dichotomy really exists:
First, it exposes the lie that is perpetuated in the legal community that copyright laws don't protect "ideas", but rather only the "concrete expression" of ideas. In practicality, this statement is pure nonsense as evidenced by the fact that a copyrighted work seals in monopoly protections of "characters" and "derivative works" - even if such derivative works don't include any actual "copying" of cloned material from the underlying work.

For instance, if I feel that I have a far better script or storyline that utilizes the character of James Bond, but without utilizing any previous cloned image from a Bond film and without copying previously used dialogue beyond a minimal instance of "My name is Bond...James Bond." or "Shaken...not stirred.", I still would not be able to create it, because Ian Flemming's estate and/or Sony Pictures, etc. has a monopoly over the IDEA of James Bond.

I would argue that by protecting "derivative" works, copyright effectively asserts control over ideas - except for those envisioned at the most abstract levels.
I'm sure we'll get angry comments from some of the copyright defenders who are always quick to chide, but I'm curious how they can use the so-called idea/expression dichotomy as a defense against a First Amendment violation, when that dichotomy doesn't really seem to exist. Copyright system defenders, for years, have relied on the whole "idea/expression" split to explain away how copyright law can be compatible with the First Amendment's insistence that "no law" may be passed that inhibits freedom of speech. If you realize that said split doesn't really exist (or, at the very least, is not enforced by the courts), you have a big, big constitutional problem.

Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    Anonymous Coward, 4 Jul 2009 @ 5:07pm

    Re: You sir, are wrong.

    "The films I listed have similarities, and are reasonably close substitutes. Your example of M*A*S*H and I Love Lucy is a poor example and fails the "close substitute" test."

    Again, that is only in your mind. You see the connections on "subject matter", while I showed you any number of connections between I Love Lucy and MASH. If you are looking for something, you can almost find it (sort of like the eye in the pyramid on the US dollar).

    "Ah, so speech can be non-infringing but move into products, or the area of "economic activity" and it becomes an issue."

    Nope, you misread my point entirely - even in economic activity, you can have similar ideas that are not similar expressions, and there there is no issue. You can have harry potter, and you can have "I was a teenage witch", both feature magic but both are different expressions of a similar idea base. You can't copyright an idea base, but you can copyright a collection of ideas together as a product. That is why spy movies abound, but there is only 1 (or 1.5) James Bond.

    "We know that stronger copyright protection can increase the market value of companies. But this is a gain to corporate, not societal welfare, and what I believe was not the intended outcome of the USPTO, Copyright or Patents in general."

    Unproven concept. As companies get richer, they in turn tend to employ more, pay more taxes, and generally enrich society. "Societal welfare" is a complicated concept that isn't going to get fixed by cutting copyright in half, example. Removing the economic benefits of copyright could in fact have a major negative on an economy, encouraging companies not to do business and not operate in areas where they don't have a fair exception of profiting from their advancements and products.

    My feeling? You have a fairly hard socialist agenda, and I am sure you can go on for hours on ways you can bend the constitution to fit your needs. There is a long line of caselaw that says otherwise.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer
Anonymous number for texting and calling from Hushed. $25 lifetime membership, use code TECHDIRT25
Report this ad  |  Hide Techdirt ads
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.