Sunday, 20 January 2013

Idea and expression

I am (I wrote originally a month or so ago) marking essays. It's part of the price I pay for two trips a year to Moscow, and actually I'd be happy to pay a far higher price to visit such a fascinating city. It's just a shame that I spend so much of my time there in a soulless block in Novie Cheryamushki, which notwithstanding its fame (thanks to Shostakovitch) is a pretty boring area. Also a pity about the driving. I have gone through this looking for our regular driver, but he seems to have got away.

I set my students an assignment, using a quote which came straight out of the University of London subject guide, but before that straight out of the third edition of Cornish. In the sixth edition (Cornish and Llewellyn by now) it's a little different - it speaks of commentators, rather than "our leading authors" - that proprietorial tone of voice strikes a strange note. Moreover, it now quotes Hugh Laddie's excellent 1995 Stephen Stewart lecture, "Copyright: Over-strength, Over-regulated, Over-rated", published in (1996) 18 European Intellectual Property Review 253 as an example of such a commentator - the only commentator quoted, as it happens. And Cornish was himself quoted by the Court of Appeal in Designers Guild Ltd v Williams (Textiles) Ltd [1999] EWCA Civ 1104. Anyway, I thought it might be useful, as an aid to marking the students' work, if I wrote an essay myself - and perhaps it will help the students, too ... If any reader cares to comment on my effort (which I am not going to spend a lot of time over - after all, it was originally an exam question - although that said I have left several weeks between starting it and finishing) I would be very pleased.

Here's the question (it says "discuss" after the quote):
The imprecision of any line between idea and expression causes our leading authors to castigate the whole notion. Why then does the distinction survive such disparagement? Why, indeed, is it seized on as the basis of international accord?
[First of all, let me note that this seems to me to be a strange use of the verb "to castigate", which I always thought needed a human object.]

And here is my attempt at an answer:

In the terminology of copyright, what is protected are referred to as "works", and in the case of literary, dramatic, musical and artistic works they are protected only if they are original. From this starting point, it follows that to define the scope of copyright protection we must identify what the author has created and filter out what he or she has copied from elsewhere or has included out of necessity, or which constitutes an idea to which the author has brought his or her own expression.

The problem, commented on - "castigated", according to Professors Cornish and Llewellyn (para 12.06) - by (inter alia) Laddie in his 1995 Stephen Stewart lecture, "Copyright: Over-strength, Over-regulated, Over-rated" (1996) 18 EIPR 253, and by M.Spence and T. Endicott in “Vagueness in the Scope of Copyright” [2005] LQR 657, is that it is rarely a simple matter to distinguish an author's original work from the idea or ideas that underlie the work. In the United States, Judge Learned Hand put it nicely in Nichols v Universal Pictures 45 F (2d) 119 (1930):
[U]pon any work ...... a great number of patterns of increasing generality will fit equally well, as more and more incident is left out. The last may perhaps be no more than the most general statement of what the [work] is about, and may at times consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his ‘ideas’, to which, apart from their expression, his property never extended ......Nobody has ever been able to fix that boundary, and nobody ever can.
We must however beware of importing the jurisprudence of the American courts into UK copyright law, because Section 102(b) of the Copyright Act 1976 in the US expressly excludes ideas from copyright protection. UK copyright law excludes ideas by implication from the use of expressions such as "work" and "original" (although it must be noted that the software directive mandated the exclusion of the ideas underlying a computer program, an exclusion which nevertheless does not appear on the face of the amended statute), and the so-called "idea-expression dichotomy", which can be traced back to the great US Supreme Court case Baker v Selden 101 US 99 (1880) (see Samuels, 56 Tenn. L. Rev. 321 (1989)), comes into play in UK law only when judging whether copyright has been infringed by the taking of a substantial part of the protected work. Ideas cannot logically constitute a substantial part of a copyright work, and distinguishing them from expression therefore has to be done at a different stage of the proceedings under UK law compared with US law. The hazards of following American cases are well illustrated in John Richardson Computers Ltd v Flanders and Chemtec Ltd [1993] FSR 497 (Falconer J), which was criticised in the later case IBCOS Computer Ltd v Barclays Mercantile Highland Finance Ltd. [1994] FSR 275 in which Jacob J (as he then was) preferred a "home grown" approach which recognised the lack of an express exclusion from protection for ideas:
For myself I do not find the route of going via U.S. case-law particularly helpful. As I have said, UK copyright cannot prevent the copying of a mere general idea but can protect the copying of a detailed "idea". It is a question of degree where a good guide is the notion of overborrowing of the skill, labour and judgement which went into the copyright work. 
However, as Lord Hailsham of St. Marylebone said in L.B. (Plastics) Ltd v. Swish Products Ltd. [1979] R.P.C. 551, 629, "as the late Professor Joad used to observe it all depends on what you mean by 'ideas.'" As Jacob J also observed in Ibcos:
The true position is that where an "idea" is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the "idea" is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the "idea") of a novel or play can certainly infringe—if that plot is a substantial part of the copyright work.
In Designer's Guild v Russell Williams Textiles Ltd [2000] 1 WLR 2416, Lord Hoffman says at 2422:
Plainly there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form, as a literary, dramatic, musical or artistic work. But the distinction between ideas and expression cannot mean anything so trivial as that. On the other hand, every element in the expression of an artistic work (unless it got there by accident or compulsion) is the expression of an idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers rather than tadpoles, use one colour and brush technique rather than another, and so on. The expression of these ideas is protected, both as a cumulative whole and also to the extent to which they form a "substantial part" of the work. Although the term "substantial part" might suggest a quantitative test, or at least the ability to identify some discrete part which, on quantitative or qualitative grounds, can be regarded as substantial, it is clear upon the authorities that neither is the correct test. Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 W.L.R. 273 establishes that substantiality depends upon quality rather than quantity (Lord Reid, at p. 276, Lord Evershed, at p. 283, Lord Hodson, at p. 288, Lord Pearce, at p. 293). And there are numerous authorities which show that the "part" which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. That is what the judge found to have been copied in this case. Or to take another example, the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original. If one asks what is being protected in such a case, it is difficult to give any answer except that it is an idea expressed in the copyright work.
My Lords, if one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own: see Kleeneze Ltd. v. D.R.G. (U.K.) Ltd. [1984] F.S.R. 399. The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work. Kenrick & Co. v. Lawrence & Co. (1890) 25 Q.B.D. 99 is a well known example. It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff's work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author's skill and labour as to attract copyright protection.
Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the author's skill and labour, tends to lie in the detail with which the basic idea is presented. Copyright law protects foxes better than hedgehogs. In this case, however, the elements which the judge found to have been copied went well beyond the banal and I think that the judge was amply justified in deciding that they formed a substantial part of the originality of the work. 
Copyright may find its philosophical justification in several theories, but whether one subscribes to the natural rights approach, to an incentive-based theory, or to a Utilitarian analysis, there is little or no support for extending protection beyond the author's expression to the ideas used. To do so would have a chilling effect on creativity: copyright would overreach into places where public policy does not, must not, encourage it. So while commentators may criticise the lack of precision in the distinction, described so eloquently by Judge Learned Hand, it remains essential if we are to ensure copyright does its job - or any, or all, of its jobs - properly.

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