The Idea/Expression Dichotomy and Its Impact on the Blurring Copyright-Patent Paradigm

Abstract

There is hardly any single principle of copyright law that is more basic or more often repeated than the so-called idea-expression dichotomy. Some commentators have severely criticized it arguing that continued recognition of the dichotomy is neither justified nor helpful in deciding real-life problems. Yet the doctrine, developed by the common law practices, has been followed by courts in hundreds of cases extending it to explain related copyright complexities, which over the years had also led to the vagueness and confusions. The recent decision of the United Kingdom (UK) Supreme Court (SC) in Lucasfilm v Ainsworth has aggravated the confusions as to the criteria and standards of its application thereby throwing uncertainty on the scope of copyright protection. As the primary purpose of the doctrine is to specifically define what is protectable by copyright, what belongs in the public domain, and what is protected by patent law, decisions affecting the dichotomy may have significant impact also on the patent copyright paradigm. In fact, the decision has outstanding impact on the blurring copyright-patent paradigms. But what does it mean for the dichotomy itself? The dichotomy has eroded in practice throughout the course of the twentieth century and most probably, as this decision portends, will continue to become ‘harder to define, harder to identify, and therefore harder to defend’ in future.