The relevance of Idea-Expression dichotomy under Copyright law in context with computer programs

Copyright is a right given to or derived from works and it is not a right in novelty only of ideas. Copyright essentially protects the works of an author or creator and prevents others from copying such original work. It does not, however, bar others from coming to the same result through an independent process.

There exists no copyright in ideas. Copyright subsists only in the material form to which the ideas are translated. Two authors may have the same idea for a book. However, the way they express themselves i.e., the way they put down their idea in a tangible form is what makes a difference. It is the form in which a particular idea, which is translated , is protected.

The primary reason for granting protection to expressions and not ideas is to protect the free flow of ideas. Ideas are too valuable to be copyrighted. The copyrighting of ideas would eventually bring creativity and innovation to a standstill. It is for this reason that the freedom to copy ideas is central to the structure of copyright law.

The Indian Copyright Act, under Section 13, grants protection to the following works:

  1. Original literary, dramatic, musical and artistic works.
  2. Cinematographic films.
  3. Sound recording

However, the question that arises here is, by granting copyright, what exactly is being protected?

How does one distinguish between an Idea and an Expression?

The idea-expression dichotomy poses a major challenge in distinguishing between the two. The absence of a statutory provision necessitates reliance on several case laws that attempt at chalking out a clear distinction between the two.

An important case in this regard is that of RG Anand v. Deluxe Films. The plaintiff was the author of a play called Hum Hindustani. In 1954, the defendant Mohan Sehgal sent a letter to the plaintiff expressing his desire to make a movie based on the play. The plaintiff and the defendant met and discussed the entire play. The defendant did not commit anything, but the plaintiff later came to know that the defendant released a movie titled New Delhi. After watching the movie, the plaintiff thought that it is based on the story of his play. So he filed a suit against the defendant for permanent injunction and damages. Both the District Court and the High Court ruled against the plaintiff on a finding of the facts. The case finally reached the Supreme Court of India.

The Supreme Court held that the movie cannot be considered to be an infringement of the script of the play. The reason it was given was that though the idea behind both the stories was the same, how both had been expressed were vastly different from each other. Therefore it cannot be held to be copyright infringement.

More recently, in the case of Mansoob Haider v. Yashraj Films, the Bombay High Court reiterated the fact that ideas are not copyrightable. The residue left behind after filtering out dissimilarities is the idea which is not copyrightable and similarity of ideas does not lead to copyright infringement.

Computer Programs as Literary Work

It is well established that computer programmes are protected under copyright law, just like any other literary work. Any act of loading a program into computer memory, saving the program or running it without the consent of the owner may infringe copyright.

In MAI System Corp. v. Peak Computer Inc., the court held that “loading of copyrighted computer software from a storage medium into the memory of the computer causes a copy to be made”. Thus, copies made into the random-access memory hereinafter referred to as RAM copies. Meaning that every time a user browses on the internet, copies of the web pages or software or any other material that are made into the RAM of the user’s computer will amount to “copying” and therefore one can be held liable for the violation of copyright even if one’s aim was to read and not to copy.

In Religious Technology v Netcom, the court held that temporary copying while browsing is the fiction equivalent to reading a book in a book store and hence does not enter the scope of copyright laws. The process of temporary copying of works on the RAM is somewhat similar to the act of a person going to a book shop and just looking at a book. Also making an arrangement or altered version of the program or converting it into or out of one computer language or code into a different computer language or code is an infringement. Article 10 of the Trade-Related Intellectual Property Rights Agreement (TRIPs) provides that computer programs, whether in source code or object code, shall be protected as literary works.

Where does the problem arise?

Not all ideas can be expressed creatively. Often, some ideas can be expressed in only a particular way. In such a case, copyrighting the expression would amount to the copyrighting of the idea that would in turn stall the free flow of ideas. In every such case where the expression is necessary to effectively communicate an idea, courts apply the Merger Doctrine to find that no copyright subsists. The Merger Doctrine primarily seeks to address the point where ideas and expressions converge.

An important case in this regard is that of Morrissey v. Procter & Gamble Co. This case primarily dealt with a competition/contest and whether its rules are a copyright subject. The court held that the idea of the contest is merged with the rules. Copyrighting the rules would amount to copyrighting the idea of the contest and therefore the rules are not a subject matter of copyright.

Likewise, in the case of Joshua Et-Hokin v. Skyy Spirits Inc, the question arose about some photographs of the iconic blue bottle of Skyy Spirits. The Court held that since there are only a few ways in which a bottle can be photographed, the pictures cannot seek copyright protection.

Cases in the present have been decided based on the above cases. However, one fails to realize that this undermines the effort invested by the author or the creator. For example, consider the photographs of the bottle. The no two photographs of the bottle clicked by two different photographers can be the same. Even the variation in a slight angle can cause a huge difference. In such cases, the idea-expression dichotomy proffers no solution and is, at times, inadequate.

 Concluding thoughts

The act of Copying generally means reproducing work in any material form, as in any other literary work, copyright of the owner concerning computers is infringed by making copies without copyright holders’ permission. Reproducing work in any material form includes storage in any medium by electronic means like making a copy of a computer program on a magnetic disk. Thus, an act of loading a computer program into a computer only to run the program may be considered to be making a copy of the program. The owner of a computer program thus has the exclusive right to reproduce work in any material form including its storage in any medium by electronic means.

However, to determine whether such a computer program is a copy of the original computer program or not, there must be a substantial similarity or causal connection between both computer programs. The program doesn’t need to be exactly copied, even if a substantial part of the program is copied, it will suffice. Copying generally means reproducing work in any material form. As in any other literary work, copyright of the owner concerning computers is infringed by making without the copyright owner’s permission, which can be by way of licence, a copy of a program or a substantial part of it.

Spread the word

Share on facebook
Share on twitter
Share on linkedin
Share on whatsapp
Share on email