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.

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  1. identicon
    Doctor Strange, 3 Jul 2009 @ 12:32am

    when that dichotomy doesn't really seem to exist

    It would be helpful if you defined "dichotomy" more precisely. Perhaps you mean a clear, unambiguous split that can be determined for every case by any reasonable person, without the involvement of the courts. Perhaps you just mean "general distinction." I think you probably mean something like the former.

    There are many examples in the law where a bright and shining line doesn't exist, and yes, sometimes courts have to get involved. And like any human system, the courts sometimes get it wrong, or are inconsistent with each other (although they try at least for consistency). Obscenity. Negligence. Disturbing the peace. The idea/expression dichotomy is just as "mythical" as the standard of due care. There's stuff that's clearly on one side or the other, and there's a gray area in the middle. The law, and society, seem generally comfortable with this - even if you are not.

    If you have suggestions for how to put a finer point on the pencil and draw down the gray area between idea and expression, we're all ears. Where would you draw the line? In your perfect world, would it be OK to make a movie of a book without permission from the author? Would it be OK to market and sell a translation of someone else's book without permission? A sequel? Would it be OK to paraphrase every paragraph of a book? Every sentence?

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