PublicationsAnalyzing the Idea-Expression Dichotomy

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December 30, 2020

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ABSTRACT
The Jurisprudence that can be deduced from the Indian judicial decisions in this respect
is scrutinized in this paper. Through this analysis, I will demonstrate how some
misadventures in the judicial application of the idea-expression dichotomy strikes the very
roots of Copyright Law. This is made evident by an assessment of the tests devised in
R.G. Anand to explicate, amongst its correct reasonings, the lack of concrete guidelines
for separating ideas from expression. This deficiency combined with the misapplication of
the ‘additional viewer test’ is shown to create complications.

This paper will show how R.G Anand’s inadequacies, and the paucity of methodological
approaches incorrectly applying this doctrine, consequently, allow the High Courts to
apply their own interpretation and understanding of the idea-expression dichotomy. This
leads me to conclude that India is yet to develop a robust understanding of this basic
principle in copyright law.

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LITERATURE REVIEW
This paper seeks to trace the jurisprudence around the idea-expression dichotomy in
India since R.G. Anand and how the doctrines developed in this particular case has been
subsequently misapplied in multiple judgments. In order to establish the same, the
sources that I have primarily relied on are:

‘Idea-Expression Dichotomy and Originality Requirements for Copyright

Protection: An Analysis of Jurisprudential Underpinnings of the Judicial
Pronouncements in India’. [1]This paper analyses cases dealing with the issue of idea-
expression dichotomy and discusses the defences/exception to this concept to arrive at
the conclusion that these cases have only created further ambiguity.

‘Copyright Protection for Computer Programs: Walking on One Leg?’ by Yogesh A.

Pai[2]. This paper analyses how the idea-expression doctrines have been misapplied by
the High court’s making it unsuitable for determining copyright infringement with respect
to computer programs.

The book ‘International copyright: principles, law, and practice’ § 2.2.1.4[3]. This
book helped me appreciate the importance of consistency, in the application and
methodology of this doctrine. This is in order to counter its easily plausible misapplication
arising from its inherently malleable nature. This understanding was required to recognize
misapplications in the Indian context, and their impact on the balance Copyright Law
seeks to create.

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This paper develops on the literature in the past along with case laws on the idea-
expression dichotomy to show that since the tests devised in R.G. Anand did not lay
down concrete guidelines for separating ideas from expression, it consequently allowed
the High Courts to apply its own interpretation and understanding of this doctrine leading
to its erratic application.

INTRODUCTION
The idea-Expression dichotomy lives at the centre of copyright law. It essentially entails
the limitation of functional claims over copyrighted work. More broadly, it implies that
monopoly through copyright protection may only include the original expression of ideas
and not the ideas themselves, how so original they may be. This model of determining
copyrightable subject-matter is useful in balancing the need to afford incentives for
creativity against the public concern towards the free-flow of ideas.

The applicability of this doctrine comes into existence when we recognize that copyright
protection must extend beyond the literal aspects of a work. If protection is limited to such
copying, then one can escape copyright infringement by making inconsequential
variations in the original work. The American Courts in Nicholas v. Universal Pictures[4]
were the first to appreciate this verity by expressly affording protection against non-literal
instances of copying. The same case also recognized the difficulty in ascertaining idea
from expression and that such ascertainment essentially needs to be ad-hoc.

To separate an idea from an expression using a consistent and well-justified methodology

is paramount for the positive manifestation of the idea-expression dichotomy, and to
prevent its balancing objectives from being left-over as a mere hypothesis. The imprecise

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nature of this doctrine requires lawmakers and judiciaries to take clear and conceptually
robust stands on what may constitute protectable expression. If not, they may fall victim
to the inherent malleability that underpins the ambiguous nature of this doctrine.

ANALYSIS OF INDIAN JURISPRUDENCE

In the Indian context, the position on the idea-expression dichotomy is shallow. This is
partly due to a dearth of cases contributing to the conceptual development of this
doctrine, and partly, because of some misadventures in deciphering its very roots.

Statutory copyright law in India does not specifically exclude ideas from protection and
the dichotomy does not find its underpinnings here. However, in the case of RG. Anand v.
Deluxe [5] films were the first to accept this doctrine as a well-settled principle by relying
on various authorities, both Indian[6] and foreign[7]. This is the only Supreme Court case
on the matter.

It held that “an idea, principle, theme, or subject matter or historical or legendary facts”[8]
cannot be copyrighted but provided little guidance on how these abstract elements were
to be separated from their protectable counterparts. The abstraction test from the
Nicholas case found no reference here, although, a similar concept was introduced in
recognizing that- when an idea is constantly re-expressed in different ways, there may be
an increasing similarity with the original expression due to a common source, and that at
a certain level, this similarity becomes fundamental. It is at this level (where the idea is
sufficiently delineated), that it may afford copyright protection. [9]

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The deficiencies with this reasoning, are comparable to that of the abstraction test as it
was in Nicholas. Both these cases make it clear that non-literal copying affords protection
and that at a ‘certain’ level of abstraction, the element becomes unprotectable, however,
there is no clear guidance on how one closes on identifying this ‘level’.

To reconcile with this issue, R.G Anand introduces the ‘additional viewer test’, under
which a copyright infringement will exist if “the reader, spectator or the viewer after having
read or seen both the works is clearly of the opinion and gets an unmistakable impression
that the subsequent work appears to be a copy of the original.”[10] Here, the word
‘impression’ suggests a ‘look and feel’ approach to the works being compared, but there
is no guidance on what specific aspects of these works (i.e. ideas or expressions), need
to viewed when making this comparison. It may seem obvious that this comparison
excludes elements beyond a ‘certain’ level abstraction, but this is not a natural
consequence of the courts reasoning. This inadequacy creates a major complication as
without having any guidance on how to approach the separation of idea and expression,
one is expected to make an ‘unmistakable impression’ of whether a work is the copy of
another. This is in essence, is analogous with putting a blind man in the driver’s seat.

A thorough assertion that ‘the additional-viewer test’ needs to be founded on the

distinction between idea and expression (even though there is no clear-cut method to
approach this), would at least prevent the blatant disregard of idea-expression dichotomy
by cases relying on this ruling. Unsurprisingly, the blind man crashes, as we will see in the
following case.

In Sulamangalam v. Meta Musicals[11], the Madras HC relies on R.G Anand to conclude

that “sufficient objective similarity” is required to constitute infringement. The court fails to
substantiate the meaning of ‘objective similarity’ and without appropriate justification, one
can easily mistake this as ‘general similarity’. This possibility arises as, even though the
rationale of R. G Anand (regarding idea-expression dichotomy) is considered by the
court, the ‘unmistakable impression’ of the additional viewer test, is applied in total
isolation from ‘expression’. In other words, the court neglected the fine distinction
between ideas and expression when considering the ‘look and feel’ of the concerned
works. They said, “On comparison through display, it is clear that the listener after having
listened to both the [musical] works would be of the opinion and unmistakable impression
that the infringement work appears to be the copyrighted work.”[12]

The literal and simplistic application of the additional viewer test in this case, has clearly
caused the engulfment of ideas within the realm of copyrightability. This obvious
disregard to idea-expression dichotomy is visibly rooted in R.G Anand’s inadequate
assertion towards the congruent use of ‘additional-viewer test’ with this doctrine. By no
means is this error is an isolated incident, as will be shown below.

In Raja Pocket Books v. Radha Pocket Bookscharacter. The plaintiff asserted copyright in
the name ‘Nagraj’, as the defendant had created another comic character with the name
‘Nagesh’. Along with the phonetic and visual similarities between both characters, certain
underlying concepts in their portrayal bore a resemblance. The court reiterates R.G
Anand by admitting that an “idea, subject matter, themes, … legendary facts” [14]cannot

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be copyrightable, however, they failed to appreciate its essence by mistaking higher
levels of abstraction (which actually constituted ideas), with expression. Here, the manner
and arrangement of both storylines were ignored by a simplified application of the
‘additional viewer test.’ The ignorance of idea-expression dichotomy when deciphering
the ‘look and feel’ of both characters becomes clear from the following statement- “not
only the theme is the same, though presented slightly and somewhat differently, but the
central its idea remains the same.”[15]

Though the court was contemplating that its basis of comparison was in line with R.G
Anand, it essentially relied on the overall impression of both characters with utter
disregard to level of abstractions being equated. The following excerpt makes this
especially clear- “Similarly about the theme of visual, phonetical similarity and overall
impression of the two works that the same is likely to deceive such a man or cause
confusion that he may make mistake in the goods of defendant for that of the plaintiff.”
[16] This culminates at the end of the judgement and represents the faulty analysis of the
entire case. First, R.G Anand explicitly rejects “themes” from copyright protection due to
their inherently high levels of abstraction. Second, ‘overall similarity’ is a drastic
simplification of the ‘additional viewer test’, a pitfall that is already discussed above.[17]

The third and the most absurd reasoning belongs to the importation of the trademark
criterion, i.e., “likely to deceive such a man or cause confusion.” [18]Adding to this, the
‘doctrine of fading memory’, i.e., assessing the ‘impression’ from the viewpoint of an
average person with imperfect recollection, is applied to approach the comparison. This
application is akin to that of ‘deceptive similarity’, which again, is a trademark concept.
This case, therefore, is a wholesome distortion of the propositions laid by R.G Anand and
discarding its value on grounds of doctrinal incoherence with the basics of idea-
expression is easily plausible.

A poorer instance of misreading R.G Anand is Anil Gupta v. Kunal DasguptaHC granted
an injunction against a television show on grounds that it infringed the copyright resting in
a “detailed concept note” [20]of another television show. Although it recognized, in line
with R.G Anand, that a concept cannot be granted protection, it botched the application of
the same. The court’s reasoning hinted that an idea if transcribed in adequate detail,
would constitute copyrightable subject-matter.

It seems obvious that a concept note (even vastly detailed), for a show projected to run
for several hundred episodes[21], would be nothing but a theme or plot, which according
to R.G Anand cannot be granted protection. Worse, the logic of the judgement largely
rested on the transcribed “note” being an original concept, which implies that a novel idea
(irrespective of its of expression), may afford copyright protection. The weight here was
placed on ‘novelty’ (in the garb of ‘originality’), rather than looking for a delineated
expression of the idea. This is a blatant inclusion of patent-law principles to determine
copyrightability and implies not just a misreading of idea-expression dichotomy, but a poor
understanding of ‘originality’ itself.

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To make it worse, the court’s cumulative argument read- “if the defendant is allowed to
show their own reality show based on the concept originally conceived by the plaintiff, it
will be allowing the defendant to use that concept and to reap the fruit of labor of the
plaintiff.”[22] This statement is not only representative of the inaccuracies pointed above
but highlights the underlying economic reasoning behind the decision. It is well-settled
that idea-expression dichotomy with regards to transcriptions (like the concept note here),
may pose analytical difficulties when they do not constitute the end-work. This is because
in such form, the idea, howsoever delineated, may not be considered valid expression
considering its distance from the proposed end-result. Such a highly detailed (but
unprotectable[23]) idea may have high economic value, but ‘copyright law is not designed
to maximize the economic returns to the creator’[24] and the non-contextual application
of the excerpt above, shows the courts disregard towards this basic principle.

Zee Telefilms v. Sundial Communications[25] reiterated faulty understanding of the idea-

expression distinction laid out in the Anil Gupta case. It afforded protection to a concept
note due to its ‘detailed’ transcription and relied on the ‘theme’ of the story for locating
infringement. The comparison involved an excessively simplified application of the
‘additional viewer test’, which as shown above, is certain danger. The fact that this test is
so easily misapplied, may find its underpinnings in R.G Anand’s weak assertion
concerning its application, strictly in congruence with ‘expressions.’ However, this does
not save the court from their brazen consideration of the ‘theme’[26] in determining
copyright infringement. This issue has not been addressed by the Supreme Court yet,
and copyrights continue to be granted based on Anil Gupta’s holding. [27]

CONCLUSION

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The discussion above shows us how the deficiencies of R.G Anand, play out in the
lower’s courts understanding of Idea-Expression Dichotomy. Some instances are not
limited to a poor understanding of the Supreme Court precedent but strike at the heart of
Copyright Law. The lack of consistency in the application of essential concepts draws me
to conclude that the Indian jurisprudence on the matter is in dire need of inspection. The
misapplication of Idea-Expression dichotomy is conceivably a symptom of the dearth of
cases engaging with it on a conceptual level.

REFERENCES-

[1] Agitha, T. G. “Idea-Expression Dichotomy and Originality Requirements for Copyright

Protection: An Analysis of the Jurisprudential Underpinnings of the Judicial
Pronouncements in India.” Copyright Law in the Digital World. Springer, Singapore, 2017.
1-44.

[2] Pai, Yogesh A. “COPYRIGHT PROTECTION FOR COMPUTER PROGRAMS:

WALKING ON ONE LEG TITLE CASE?.” Journal of the Indian Law Institute 48.3 (2006):
359-399.

[3] Goldstein, Paul. International copyright: principles, law, and practice. Oxford University
Press, USA, 2001, § 2.2.1.4.

[4] Nichols v. Universal Pictures Corp. 45 F.2d 119 (2nd Cir. 1930).

[5] AIR 1978 SC 1613

[6] The SC examined Raghunathan v. All India Reporter, (AIR 1971 Bom 48); Cinniah v.
Balraj (AIR 1961 Mad 111); K R. Sharma v. Sangu Ganesan, (1972 Cr LJ 1908);
Mohendra Gosh v. Emperor, (AIR 1928 Cal 359); Mohini v. Sita Basak, (AIR 1931 Cal
230); Ramesh v. Nowsheri, (AIR 1965 J&K 101); Dutt v. Law Book Co. (AIR 1954 All
570); Sivakasi v. The United Concern, (AIR 1967 Mad 381.)

[7] The significant foreign references included Donoghue v. Allied. Newspapers, ((1973) 3
All ER 503); 503; Ladbroke Ltd v. William Bill Ltd, ((1964) 1 All ER 465) and Sheldon v.
Metro-Golden Pictures Corporation, (81 F2d 40).

[8] AIR 1978 SC 1613

[9] See: Justice Guha, (p.823), R.G Anand v. Deluxe films.

[10] AIR 1978 SC 1613

[11] . 2000 (20) PTC 68

[12] Ibid.

[13] 1997(17) PTC84(Del).

[14] Ibid.

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[15] Ibid.

[16] Ibid.

[17] See: Analysis of Sulamangalam v. Meta Musicals, Supra note 11.

[18] 1997(17) PTC84(Del).

[19] AIR (2002) Delhi 379

[20] Ibid

[21] Ibid.

[22] Ibid.

[23] Supra note 12, (Refer to the conflict with R.G Anand)

[24] Nimmer, Melville B., Nimmer On Copyright, “Treatise on the Law of Literary, Musical
and Artistic Property, and the Protection of Ideas”, New York (1978).

[25] 2003 (27) PTC 457 (Bom.).

[26] The story involved a dysfunctional family whose problems are solved by god, who
comes to them as a boy. These are well-known expressions (or to-be expressions) whose
underlying ideas lie in the public domain. (Doctrine of Scenes-a -faire) See: Supra note
14.

[27] See: As recently as 2017, in Zee Entertainment Enterprises Ltd. v. Sony Pictures
Networks, AIR 2017 Bom 221. Others: Urmi Chiang v. Global Broadcast News, 2008 (36)
PTC 377 Bom; Beyond Dreams v. Zee Entertainment, 2015 (62) PTC 241 (Bom.)

CITE THIS WORK

Legal Maxim (July 4, 2021) Analyzing the Idea-Expression Dichotomy in Copyright
Laws. Retrieved from https://www.legalmaxim.in/analyzing-the-idea-expression-
dichotomy-in-copyright-laws/.

AUTHOR DETAILS

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Author: Avantika Rai

Affiliation: 4th Year Law Candidate, Jindal Global Law School

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