Copyright protects original, creative expressions on a tangible form. All three requirements, originality, creativity, and expression on a tangible form have low thresholds, and are easily satisfied by almost, all writings. As long as the writer’s work is independently created, not copied; it has minimal creativity, a pinch at least; and the writing is on a tangible form such as paper, electronic medium, etc., copyright protection automatically begins. Expression is what matters for copyright protection, and impression is irrelevant.
Ideas and Expressions
Copyright protects expressions, and not ideas. An idea in the writer’s mind has no value under the copyright law. It starts assuming importance only when it is expressed on a tangible form. Just expression is not enough, the expression must be on a tangible form. Oral expression or any other form of intangible expression is not recognized under the copyright law as protectable subject matter.
Example: X discloses his story ideas to Y. Y copies one of X’s ideas and writes a story. Y gets copyright protection over the story, and X does not get any protection. In such a case, X will not have any remedy against Y for copying his ideas under the copyright law. He may be able to go after Y if the disclosure is made in secrecy, confidence, or trust, but it won’t be easy to prove X’s ownership and Y’s liability. However, if X records the conversation on his phone, a tangible medium, copyright protection comes into play.
Expressions constitute ideas, and ideas are not independently copyrightable except through their expressions. If an idea can be cleanly separated from the expression, or if an idea merges with the expression, the idea is free from copyright protection. Such ideas may be used freely by any writer without fear of copyright liability. However, the line between ideas and expressions is often blurred, and Courts struggle to draw the line while making decisions.
Differentiating between ideas and expressions in a writing is easier said than done. The simple process is to read the work, identify elements of the work that are ideas, and filter them out. What is left will be expressions. But, how should ideas be identified, and how should they be segregated? While it might be easy to identify certain generic idea elements, it is not easy to determine whether something is an idea or an expression.
X sees Y and falls in love.
She sees Y for the first time in the airport.
She proposes as soon as she has her first drink in the aeroplane.
The plane gets hijacked, and Y is shot.
X kills all the hijackers and saves Y.
She accepts X’s proposal as soon as the flight lands, as she is being rushed to the hospital.
Can you identify ideas in the story? Ideas have to be identified by setting aside subjectivity and writer/creativity bias. This is a short story and relatively easy to work with when compared to a large work with a complex theme, story, plot, sequences and scenes. It may be argued that this entire story is an expression, and it may also be argued that the entire story is an idea, which is not copyrightable.
Falling in love is a common theme in many stories, several stories are set in airports and aeroplanes, and numerous stories of hijacking exist. All I did in this story was combine idea elements from different stories to write a story. At a general level, all stories are ideas and turn into expressions only when the writer makes a body out of the bare bones. Each writer may construct a different body of expression using the same ingredients.
Novelty and Expression
One factor that may push a judgment in favour of expression is the extent of novelty and originality. Highly novel ideas are considered as expressions. While how high is high is an open question, it is well accepted that extent of novelty is a material factor in swaying a determination towards expression. Novelty of the idea may arise from the concept, theme, plot, or even scenes or sequences. Greater the novelty of a story greater will be the proportion of expressions in the story and lesser the ideas.
For example, if I write a story of bacteria living in colonies on a petri dish and interacting with each other like humans with the concept of how experiments affect them psychologically, and I am the first writer to do so, my story may have more expressions than ideas in a judicial determination when compared to other less novel stories. If I write the story of a boy and girl falling in love, and the boy fighting the girl’s father, who happens to be the local don, to get her, the extent of ideas in my story will be much higher than those of expressions when compared to the earlier story. The difference between the two stories is the extent of novelty and how much earlier writers have delved into similar concepts.
Novelty is a patent requirement and does not generally play any role in copyrightability analysis except under certain circumstances, one of which is idea-expression dichotomy. At a philosophical level, novelty is an integral element of originality, and its use is not completely extraneous for copyrightability determination.
Facts and Expressions
Facts are considered as ideas under the copyright law. They are not considered as expressions, and do not get protection as such. In other words, writers do not get copyright protection over facts and cannot control their use by another author.
For example, any writer can write a story about Mahatma Gandhi irrespective of how many others have written before her. Facts about Mahatma Gandhi and his life are ideas, free for all writers to use. However, the specific expression of the facts by one writer in the form of a story cannot be copied by another writer.
The same treatment is given to historical events though many of them may not be factually ascertainable.
Works in Public Domain
The term of a copyright is life of the writer plus sixty years in India. Once the copyright expires, the work enters the public domain and the writer cannot control it in any way. Works that form part of the public domain are treated as ideas, which can be used by any writer.
For example, epics such as Mahabharata and Ramayana are in the public domain and several writers have adapted those stories as part of their writings. While some writers have limited themselves to the original plot and story, others have created derivative works beyond recognition. Works of these authors, though based on public domain works, will be considered as expressions for copyright protection purposes. However, such protection does not extend to the original works, which are in the public domain and are considered as ideas, which another writer can use without liability.
Procedures, Processes and Expressions
Copyrights do not protect procedures, methods and processes like scientific methods, process of cooking, etc. These fall within the realm of ideas, which may be used by writers and expressed in the form of stories or otherwise. For example, story of a sambar killer, who kills by mixing undetectable poison in sambar can use the process of making sambar in her story without fear of copyright liability as what she is copying is an idea, and not an expression.
Expression is what matters
All that matters for copyright protection is expression. As a thumb rule, every writer may proceed with the impression that expression is copyrightable.
Express, and Express on a tangible medium. An idea on paper is worth much more than a million ideas in the mind.
Note: If you are a writer and would like us to answer specific questions, please write to [email protected] with the subject: Copyrights and Writers.
- Title adapted from the song, When you are Smiling, written by Larry Shay, Mark Fisher, and Joe Goodwin (1928).
- Chapter 3, Fun IP, Fundamentals of Intellectual Property, Dr. Kalyan C. Kankanala (2012).
You can read Part 1 of Copyrights and Writers here – https://www.bananaip.com/ip-news-center/words-are-all-we-have-copyrights-and-writers-part-1/