This post was first published on January 22, 2011.
We all love reading. Fiction, Non- fiction, Self Help, Post Modern Literature, Verse, and Limericks -our tastes vary. It’s a point to be noted that the authors of the books we love reading so much write exercising the faculties of their brains, ideas stemming from their brains and then expressing it in words, putting it in paper. Therefore, it’s very important that the authors have full right over their creation. But, many ideas arise from something that is already present and in the case of literary works what needs to be checked in, if the expression of the idea is different. The ‘idea’ itself can be universal. It’s to be seen how original the author was in expressing his idea. As we see now, there are differences in perceptions of literary products as public and/ or private property and there are conflicts in legal notions of textual ownership related to the fiction of private labour in the debate over copyright and the problem of idea- expression dichotomy.
We have come a long way from the pre modern times when texts themselves were generally not represented by a single author’s name, literary plots and intellectual arguments circulated in the public domain to the Middle Ages and into the Renaissance when if at all if the author was recognized, he was one of many who took part in the production and circulation of a composition. With the modern period, the products of intellectual labour became commodities that owner might exchange for social and material goods. Some ideas are too foundational or so abstract that they do not qualify for legal protection – the literary image of star crossed lovers, for example. Others have a much higher level of embellishment or particularization so that, although failing short of copyright ability or patentability, they nonetheless are defined and indefinable- for example, formulation of a new fast food. Sometimes, ideas are covered orally. On other occasions, they appear in unsolicited letters or are presented in more formal documents, either with or without pre-disclosure negotiations. Recent developments in electronic technology such as internet with its public bulletin boards, email, hypertext and other forms of reader writer have potential to blend lines between public domain and intellectual property. For example, the story of Ramayana where Lord Rama is the hero and Sita is the queen is in public domain and is known to every Indian but if an author writes a new interpretation of the Ramayana it would be his intellectual creation i.e. his way of expressing Ramayana. Idea- Expression dichotomy asserts that ideas are considered to be within the public domain while their expression might be protected as private property. The modern notion of the author as a single individual who holds both personal and financial investment in his or her work was influenced to some degrees by various legal arguments surrounding copyright, in the discourse of the authors labour.
A person may have a brilliant idea for a story, or for a picture or for a play , and one which so far he is concerned , appears to be original but if he communicates that idea to an author or a playwright or an artist , the production which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in a form , whether by means of a picture or a play , or a book and the owner of the idea has no rights in the final product. Ideas, information, natural phenomena and events on which an author expends his skill, labour, capital, judgement and literary talent are common property and are not the subject of copyright.
The following propositions emerge on the matter of idea expression dichotomy:
1. There can be no copyright in an idea, subject-matter, themes, and plots or historical or legendry fact and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but literal imitation of the copyrighted work with some variation here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of infringement.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see 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.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
Authored by Ms. Apurba Kundu
