Idea-Expression Dichotomy in Copyright: Judicial Rulings and Merger Doctrine

25th April, 2024 - 12:23 pm Categories: Copyright 0 Comments

Abstract

Idea expression is the fundamental principle of copyright. This is also given in TRIPS, WIPO Copyright Treaty. Through this article, we will discuss the concept of Idea expression dichotomy, merger doctrine, and Scenes a Faire. We will also discuss the reasoning of the court while deciding the matter of idea-expression dichotomy. We will see how the court interpreted this issue. In this article, we will also discuss the recent case on this issue which is Bikramjeet Singh Bhullar v. Yash Raj Films Private Limited & Ors. and will find out how the court upheld the decision R.G. Anand v. Deluxe Films. We will also discuss the case of Eastern Book Company and ors. v. D.B Modak.

Introduction

The idea-expression dichotomy is the fundamental principle of Intellectual property, especially in the copyright. This concept stipulates a clear line between safeguarding ideas, which remain accessible to the public and protecting their specific expressions, which may qualify for copyright protection. Despite facing criticism for being vague, repetitively fictitious, imprecise, and lacking justification in case rulings, courts consistently uphold it as a fundamental principle of copyright law.[1] The ‘Idea-expression dichotomy’ is a fundamental principle in copyright law that distinguishes between ideas, and expressions, which are unique manifestations of those ideas in a tangible form. In this article, we will discuss the different aspects of that.

The Idea-Expression Dichotomy

The basic premise of the idea-expression dichotomy, as we covered previously, is that while the ideas at the core of creative works are not protected by copyright, the specific ways in which those ideas are expressed may be.

TRIPS also talks about the idea-expression dichotomy principle. It only protects expression. [2]The same provision is given in the WIPO Copyright Treaty.[3]

This contradiction makes sure that ideas are not protected by copyright; instead, it only protects the unique way that an author expresses an idea, promoting innovation and the free flow of knowledge. The expression of ideas or information in a tangible form is what copyright law protects, not original ideas or knowledge.[4] This principle was adopted by the Supreme Court of India in a series of normative precepts which have been unconditionally followed ever since.[5] This is, therefore not a question of ‘originality’ in the work per se but the dichotomy between an idea and its expression in copyright law.[6]

One idea can be expressed in different ways and here the issue of copyright comes. Because the copyright protects the expression only not the idea.[7] Justice Brennan, in the case of Harper & Row Publishers v. Nation Enters,[8] articulated that the fundamental concept of copyright law lies in differentiating between safeguarded expressions and unshielded ideas.

Merger Doctrine And Scènes à faire

A significant challenge arises when distinguishing between the idea itself and its expression becomes problematic. In instances where the idea and its expression are so intertwined that they cannot be separated, this blending is known as the doctrine of merger. Under this doctrine, if an idea can only be conveyed in a particular manner, that specific expression is not eligible for protection.[9] It’s important to recognize that certain expressions are integral to an idea, and without these specific expressions, the idea would lose its essence. Put differently, there are instances where altering the expression of an idea in a specific form would fundamentally alter the idea itself.

Many courts view these fundamental ideas as ineligible for copyright protection because granting copyright to such expressions would essentially amount to copyrighting the underlying idea as well.[10] This type of merger is particularly known as Scènes à faire.

The dictionary meaning of Scènes à faire is “Elements of original work that are so trite or common that they are not captured by copyright.”[11] If any work does not constitute Scènes à faire means that elements, techniques, or instructional methods used in this work are original. Deciding what qualifies as an essential scene can be quite subjective and can differ significantly based on factors such as the genre, the medium, and even cultural viewpoints.[12] The lack of clarity in this regard can result in inconsistent results and leave creators unsure about which aspects of their creations are safeguarded. Such ambiguity poses the danger of leaving substantial portions of a work vulnerable to being excluded from copyright protection.[13] This may, in turn, inhibit creativity by permitting derivative works to imitate original creations by leveraging genre-specific conventions. If typical elements are seen as ineligible for protection due to their perceived indispensability within a genre, creators may be discouraged from crafting inventive interpretations of these elements, understanding that such interpretations will not be safeguarded by copyright. This could hinder the emergence of fresh and original creations.[14] The merger doctrine states that if there are limited ways to express an idea, the expression becomes inseparable from the idea itself and cannot be copyrighted. This may reduce protection for works that are inherently straightforward or where expression options are restricted, possibly deterring creators from exploring such formats.[15]Top of Form

Judicial Analysis

As it can be seen from the above how idea expression works in the process of protection under copyright. Also saw merger doctrine and Scènes à faire. Now in this section, we will see what role the judiciary played in deciding the issue related to idea-expression dichotomy. There are many cases related to this idea expression issue.

In India, the issue of idea expression came to be known in the case of R.G. Anand v. Deluxe Films[16] before the Supreme Court. The plaintiff, a part-time playwright and stage play producer, accused the defendant, a filmmaker, of copying significant parts of his play for a film adaptation, alleging copyright infringement. The defendant argued that the shared theme was not unique to the plaintiff’s work but was common. After a thorough analysis of relevant authorities and case precedents, the Supreme Court formulated the following principles to resolve the matter:

1. Copyright law doesn’t safeguard ideas, themes, plots, or factual content; it solely protects how these elements are expressed by the author.
2. While works might share common themes, actual infringement happens when there’s substantial copying of expression. If the defendant’s work closely imitates the original with only minor changes, it violates copyright.
3. A strong indication of infringement occurs when audiences easily recognize similarities between original and subsequent works.
4. When a shared theme is presented differently, resulting in a new creation, there’s no infringement.
5. Differences between works, along with coincidental similarities, suggest no intent to copy and thus no infringement.
6. To prove copyright infringement, clear and convincing evidence following established legal criteria is required.
7. Demonstrating copyright infringement of a stage play by a film producer or director is difficult due to the film’s broader scope and diverse presentation possibilities. Nonetheless, if viewers perceive substantial copying from the original play, infringement can be established.

In comparing the play with the film, the Court found that while both addressed the theme of provincialism, the film presented it distinctly. Despite notable similarities between the two works, significant differences also existed, indicating no intention to copy the original. As a result, there was no copyright infringement in this case.

These seven points given in the case of R.G. Anand v. Deluxe Films were applied in Kerla High in the case of R. Madhavan v. S.K. Nair.[17] The court determined a notable absence of resemblance or similarity in the theme, scenes, and situations between the film and the novel. The key events, situations, and scenes depicted in the film differed significantly and substantially from those in the plaintiff’s novel. The court concluded that there was a noticeable absence of similarity in the theme, scenes, and situations between the film and the novel. The significant events, situations, and scenes depicted in the film differed substantially and materially from those presented in the plaintiff’s novel.

In 2002, the Delhi High Court tackled the idea-expression distinction in the case of Anil Gupta v. Kunal Dasgupta.[18] The plaintiff approached the defendant about putting their idea for a reality matchmaking TV show on television. The plaintiff filed an infringement lawsuit for copyright infringement, claiming that the defendant had stolen his idea. As for the idea itself, the defendant argued that copyright could only protect the expression

The Court concurred, stating that copyright doesn’t protect ideas alone. However, it also ruled that if the disputed concept is novel, it can be copyrighted even if it’s just an idea. Recently, the idea-expression dichotomy was further explored in judgment reporting, notably in the 2008 Supreme Court ruling of Eastern Book Company and Ors. v. D.B. Modak.[19]

Recently in the case of Bikramjeet Singh Bhullar v. Yash Raj Films Private Limited & Ors.[20] The Delhi High Court rejected a request for a temporary injunction to halt the streaming and broadcasting of the film “Shamshera” in a case brought by Bikramjeet Singh Bhullar, who alleged that the movie infringed upon his copyrighted script titled “Kabu na chhadein Khet.” The court observed that Copyright cannot be claimed over ideas and themes, with a clarification that this statement does not affect the ongoing trial or final judgment regarding Bhullar’s copyright infringement case on its merits. In the present case, the court said that “the ideas within the plaintiff’s script do not qualify for copyright protection, especially in common or stock elements. Upon comparing the script with the contested film, it doesn’t appear that one is a significant replica of the other.” There is no dispute over the importance of recognizing writers’ contributions. However, the plaintiff has failed to establish a clear case of copyright infringement, thus no injunction can be granted to stop the defendants from continuing to broadcast their film on OTT platforms.

The court instructed the film’s makers, including Yash Raj Films Private Limited, to disclose their current revenues from the film’s telecast. Justice Singh noted that themes like father-son relationships with similar appearances, the use of children, birds, hot oil, horses, underground tunnels, etc., are common in Bollywood movies. Granting the plaintiff’s claim would imply granting a monopoly over ideas, contradicting the Supreme Court’s judgment in the RG Deluxe case.

Moreover, the court emphasized that the differences between the script and the film outweigh the alleged similarities. Merely comparing settings in North India, as argued by the defendants, cannot constitute copyright infringement. Similarly, elements like burning oil, water, birds, navigation stars, secret underwater tunnels, horses, swirling ghagras, and sensuous scenes have been prevalent in numerous movies over time and are widely understood as common storytelling elements. The court further stated that these ideas and expressions lack uniqueness, and as per previous judgments, they are commonly conjured by authors of fiction and are considered as “Scènes à faire,” which do not warrant copyright protection.Top of Form

Conclusion

Idea expression dichotomy is the fundamental principle of copyright that shows the distinction between protecting ideas and the expression of those ideas. Through landmark judicial decisions such as R.G. Anand v. Deluxe Films and subsequent cases like Bikramjeet Singh Bhullar v. Yash Raj Films Private Limited &Ors., courts have consistently emphasized the importance of this dichotomy in determining copyright infringement cases.

Author: Devyani Pranav, a student at Lloyd Law College, Greater Noida, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFERENCES:

• Trade-Related Aspects of Intellectual Property Law.
• WIPO Copyright Treaty
• https://www.theipmatters.com/post/the-concept-of-idea-expression-dichotomy-under-copyright-law

[1] Sid & Marty Krofft Television Prods. v. McDonald’s Corp., 562 F. 2d 1157, 1163

[2] TRIPS art. 9(2).

[3] WIPO Copyright Treaty art. 2.

[4] Copinger and Skope James, “Copyright”, 13th ed. Sweet and Maxwell, London 1991, 165.

[5] RG Anand v. Deluxe Films [1978] 4 SCC 118, 140

[6] Tarun Wadhwa v. Saregama India Ltd. & Anr. [2021] Commercial IP Suit (L) NO. 4366.

[7] Narell v. Freeman, [1989] 872 F.2d 907, 910; Warner Bros. v. American Broadcasting Cos., [1981] 654 F.2d 204, 208.

[8] Harper & Row Publishers v. Nation Enters.

[9] Frybarger v. International Business Mach. Corp., [1987] 812 F.2d 525, 530.

[10] K.P. Abinava Sankar & Nikhil L.R. Chary, “The Idea – Expression Dichotomy: Indianizing An International Debate” [2008] 3 JICLT 129.

[11] Duhaime’s Law Dictionary.

[12] Robert Walker, “Breaking with Convention: The Conceptual Failings of Scènes à faire”, Cardozo Arts & Entertainment Law Journal, Vol. 38, No.2, 2020.

[13] Torrean Edwards, “Scènes à faire in Music: How an Old Defence is Maturing, And How it can be improved” Marquette Intellectual Property Law Review, Volume 23, Issue 1, 2019.

[14] Zahr K. Said, “Grounding the Scènes à faire Doctrine”, Institute for Intellectual Property & Information Law (IPIL), Symposia, Vol. 61, Issue 2, 2023.

[15] Alexander D. Northover, “Enough and as Good in the Intellectual Commons: A Lockean Theory of Copyright and the Merger Doctrine”, Emory Law Journal, Volume 65, Issue 5, 2016.

[16] R.G. Anand v. Deluxe Films [1978] 4 SCC 118, 140

[17] R. Madhavan v. S.K. Nair AIR 1988 Ker. 39

[18]Anil Gupta v. Kunal Dasgupta, IA 8883/2001 in Suit no.1970 of 2001.

[19] Eastern Book Company and Ors. v. D.B. Modak, AIR [2008] SC 809.

[20] Bikramjeet Singh Bhullar v. Yash Raj Films Private Limited & Ors., CS(COMM) 483/2022