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Analysing the dichotomy of idea-expression in copyright law

It is the expression and not the idea that forms the basis of the Copyright Law, which has evolved from the common laws that existed before the enactment of the Copyright law. Therefore evolvement of an idea in the head of a person does not suffice as a valid ground to possess rights over such an idea unless it is put out in a form in a tangible medium. This principle was soon internationally recognised and universally accepted, but there still exists a dispute regarding the distinguishing line between what an idea is as opposed to an expression.

The main objective of not copyrighting ideas from the source is that such a restriction will halt the flow of ideas and hinder the promotion of creativity, which is the sole object of the Copyright Act. It is pertinent to note that ideas, systems and processes are deemed to be the common property of the whole world, but it is the right of the author to express them in their way. Ideas are always in an abstract form and hence, are conjoint to all. What requires legal protection is how such ideas are represented. Since there have been several disputes regarding the two concepts, the courts arrived at different tests to differentiate between ideas and expression.

A Seven Point test

The famous case, R.G. Anand v. M/S Deluxe Films & Ors (1978)[1] that deals with the concept of ideas and expression has arrived at a seven-point test for distinguishing an idea from an expression :

  1. There can be no copyright in the idea, facts, narrations, subject themes and infringement is limited to the form, method, arrangement and presentation of the concept.

  2. If there are similarities in the work of the defendant with that of the original work, it will be considered as a few alterations which are significant and evident to the original work leading to a copyright violation.

  3. If the viewer, reader or observer thinks that there exists a doubtful of an unmistakable impression that the subsequent work is a copy of the original work.

  4. If the idea is represented differently even though the concept is identical, it will be considered a new work that can be copyrightable.

  5. If many apparent dissimilarities appear in the two works, it will be deemed a non-infringement even though certain coincidental similarities occur.

  6. In a situation where there is an infringement of a stage play by a film producer or director, it becomes difficult for the owner of the stage play to prove infringement as there will be different perspectives and a wider one as it contains many elements along with the original content. But if the audience leaves with the impression that the movie resembles the stage play after watching the film, it will result in infringement.

  7. To prove infringement, relevant case laws have to be applied.

In R. Madhavan v. S.K. Nair[2], the Kerala High Court implemented the R.G. Anand case seven-point criteria. The court determined no likeness or relationship between the film and the text in terms of topic, scenes, or situations. The events, conditions, and scenes depicted in the movie differed significantly and materially from those in the plaintiff's novel. The Delhi High Court took up the question of the idea-expression dichotomy in Anil Gupta v. Kunal Dasgupta in 2002[3]. The plaintiff had conceived up a reality matchmaking television show and approached the defendant about broadcasting it. The plaintiff alleged that the defendant had taken his idea and implemented it, and therefore infringement action was warranted.

Lay Observers test.

The R.G. Anand Instance (1978) introduced the lay observer's test, which is now widely utilised by courts to distinguish between ideas and expression in every given case. As the name implies, this test is conducted by having an average layperson of reasonable intelligence read the plaintiffs' and defendants' respective works. Their assessment of the works' resemblance or dissimilarity is subsequently considered when a case is decided.

Extraction test

In the case of Shamoil Ahmad Khan v. Falguni Shah & Ors[4], a new test was developed. (2020) The Bombay High Court noted in this case that a seed of an idea evolves into a topic, then into a narrative, and lastly into a complete novel with the help of characters and setting. The abstract idea's genuine essence came from the combination of all the works. The unprotectable idea or abstract can be extracted if the finished product is gradually stripped of all supplementary elements. In the facts of the case, the High Court applied this principle.

The dichotomy theory's limitations

The fundamental flaw in this idea-expression dichotomy theory is that it might be difficult to tell the difference between ideas and expression at times. Even if that is conceivable, because there is no well-defined standard, the rule's application is primarily at the discretion of individual courts, resulting in countless uncertainties.

Without suitable criteria, it will be impossible to judge if a piece of work is an original representation of a concept or not. As a result, precedents must be trusted entirely. It would be so if the applicable case law stated that something constituted infringement. It would be a novel if it wasn't for that.

Expression-ideas in cinematography and related works

By their sheer nature, ideas are incomprehensible without specific expression, so talking about an expressionless notion is pointless. Even yet, when deciding cases of copyright infringement, courts must discern between idea and expression. However, such a task is difficult since, in most situations, ideas and expression are so intertwined that the Court has difficulty separating them. Essentially, the Court must establish "at what point plagiarism stops copying an author's ideas and starts stealing the presentation of his ideas."

Obviously, in order for a court to rule on a copyright infringement case, it must distinguish between the two and determine if there is plagiarism in the expression of an idea. The tricky part is making a distinction because separating the film into pieces that are "capable of being characterised as original works and other parts that are not" is difficult, so the judiciary has devised some tools to help with the process.

Identifying work that is protectable

A copyright-protected original work of authorship is distinct from each physical manifestation of that work. For example, when a photograph is copyrighted, the protectable work is the exact expression of the visual image acquired. The first expression of the art is a printed photograph of that image, but there might be many more. The original picture can be reproduced in multiple prints, and the image can be used on items. All of the other copies of the copyrighted work are derivative works. The original work's copyright owner has the right to do derivative works based on the original since the protectable work for copyright purposes is the original. Application to computer-related programmes

Consider computer programmes to demonstrate the difference between an idea and an expression. There are considerable parts of code in most computer software that are not unique to any one programme but present in many. Those more generic code sections are frequently required to provide some universally needed functionality. They are more akin to an idea or principle than an expression of creativity insight since they represent and facilitate activity. These chunks of generic code are frequently mixed with sections of original code that allow the software to execute particular tasks. For example, bits of non-original computer code are commonly incorporated in copyright-protected software to maintain compatibility with industry technical standards or interconnectivity with other programmes and devices. Even though elements of the code are not original and do not constitute an expression of creativity, the complete programme is copyright protected. If code copying is asserted as a form of infringement, the court must assess which aspects of the overall software product were copied. There was no infringement if the copying was limited to generic, commonly used elements of the product. Only if the copying incorporates distinctive features of the programme that are unique to this software will infringement be found.

Copyright law has long recognised that features within copyrighted software are generally necessary and regularly used in various works. Multiple parties utilise these "stock" pieces in other works, and such use is not considered infringement. Stock sections of computer code, similar to how "stock" sequences in theatrical plays have long been used to progress the plot, are now widely utilised to improve the effectiveness of computer software products. The widespread employment of various computer code sequences is frequently influenced by widely accepted computer industry technical standards or other external causes.

The exception to the rule

The Merger doctrine

The fundamental rule of copyright law is that facts and ideas are not copyrightable; instead, the law rewards the innovative and unique means of expressing such thoughts and facts by awarding a right to use such expression exclusively for a set length of time. However, in some cases where the idea and expression are indivisible or merged, the courts will apply the Merger Doctrine. This doctrine holds that copyright cannot be granted where the thought and expression are inextricably intertwined and the word is indistinguishable from the idea. As a result, if the concept and expression are so well integrated or fused that the idea becomes copyrightable, the growth of creativity will be hampered.

The 'Scenes a faire' doctrine

Characters, locales, tale components, language, and other characteristics common to some general subject or issue, and are often a vital part of that theme or topic, are referred to as "scenes a faire." Copyright laws will not be able to safeguard such scenes a faire. A science-fiction storey, for example, might have robots, high-tech devices, spaceships, a hero fighting a totalitarian leader, and so on. All of these scenes are free and unprotected by copyright restrictions. However, depending on the situation, the use and expression of these aspects in every given storey would be protected.


To summarise the critiques of the dichotomy, the first is that the legislation of idea-expression dichotomy lacks confidence. The Berne Convention is frequently the sole regulation that mentions this, and it also lacks clarity in terms of barring ideas from copyright protection.

Second, critics of the dichotomy have established a stronger argument that it is ineffective in resolving copyright disputes. It is argued that such an imprecise principle should not be used to decide copyright infringement cases purely on its own. The arbitrariness of the so-called essential concept of copyright law and its inefficiency when administered by courts have thus been demonstrated. It has been noted that defining and implementing the idea-expression dichotomy, in general, has proven to be problematic. Most observers who have expressed various concerns about the idea-expression dichotomy have concluded that an idea cannot exist without some form of expression. Speaking of an idealess statement for the sake of copyrightability makes no sense, regardless of the nature of the work being copyrighted.

Adv Nithya Sumam Das B.Tech LL.B Partner |Artis law house


  1. Copyright Act 1957

  2. “What Is Intellectual Property?”Legal Career Path, 2018, This citation came off of the Legal Career Path’s website, and is very important to my paper. I used this website to be able to accurately describe what intellectual property entails. I also used it to definitions on Copyright, Trademarks, and Patents, and information on international intellectual property practices


  4. [1] AIR 1978 SC 1613 [2] AIR 1988 Ker. 39 [3] 4 IA 8883/2001 in Suit no.1970 of 2001 [4]2020 SCC OnLine Bom 665

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