The Idea/Expression Dichotomy at Crossroads: Past and present of a concept
Title: The Idea/Expression Dichotomy at Crossroads: Past and present of a concept
Author: ROSATI, Eleonora
Publisher: LAP Lambert Academic Publishing
Citation: Saarbrucken, LAP Lambert Academic Publishing, 2010
The idea/expression dichotomy represents a foundational concept of copyright. Yet, the boundaries of such a principle tend to be blurred by its inconsistent application, with regard to both subject matter and case law analysis. On the one hand, for certain categories of works, it is objectively difficult to draw a clear-cut distinction between ideas and expressions, as these closely interpenetrate each other. On the other hand, as the result of a more general trend in intellectual property, copyright protection has been extended to categories of works for which the value of expression, as a category distinct from ideas, is low and it is therefore difficult to distinguish a clear application of the idea/expression dichotomy. Furthermore, the dichotomy does not seem to represent a useful tool for courts to rely upon in assessing controversial cases. The present work shall attempt to explore the nature and the boundaries of the idea/expression dichotomy, in particular its reliability, as well as determine whether such a principle can be still considered to be among the foundations of copyright rationale and scope of protection.
Table of Contents:
-- Table of cases 2 -- Introduction 4 -- I. Standing at the roots of the idea/expression dichotomy 7 -- I.1. The peculiarities of knowledge as a public intangible good 7 -- I.2. The idea/expression dichotomy: “Can he complain of losing the bird he has himself turned out?” 9 -- II. Theoretical frameworks: a room of the dichotomy’s own 14 -- II.1. Copyright theories 14 -- II.1.1. A rights-based view of copyright 15 -- II.1.2. Incentive-based theories of copyright 19 -- II.2. The place of the idea/expression dichotomy 22 -- III. Flaws in the idea/expression dichotomy 26 -- III.1. The internationalization of copyright law 26 -- III.2. Protection of computer programs: when the basics stagger 28 -- III.3. Facts and expressions: copyright protection for databases 32 -- III.4. Problematic paradigms of protection: traditional works of art 34 -- Conclusion: the dichotomy revisited 38 -- Footnotes 43 -- References 59