STUDENT REGISTRATION NUMBER: 1199292

WORD COUNT: 1998

SEMINAR GROUP NUMBER: 6

The exclusive right to use or authorize others to use (a) work on agreed terms[footnoteRef:1] is the right held in copyright law. According to the Copyright, Designs and Patents Act 1998(therein CDPA 1998), Copyright is a property right which subsists inthe following descriptions of work- (a) original literary, dramatic, musical or artistic works, [1: WIPO, What is IP? http://www.wipo.int/export/sites/www/freepublications/en/intproperty/450/wipo_pub_450.pdf ]

(b) sound recordings, films[or broadcasts], and (c) the typographical arrangement of published editions.[footnoteRef:2] [2: Copyright, Designs and Patents Act 1998, s.1(1)]

The Hollinrake case[footnoteRef:3] involved a claim by Mr Hollinrake of copyright in a cardboard sleeve-measuring device. A user could, by following instructions and using scales printed on the face of it, produce an accurate pattern for sleeves of any dimension. Beyond the facts or the decision, the most important thing about the case is the idea/expression dichotomy: Copyright protection is limited to expression of ideas, ideas, schemes, or systems or methods do not fall within the ambits of copyright protection.[footnoteRef:4] [3: Hollinrake v Truswell (1894) 3 Ch 420.] [4: Hollinrake (n.4), Lindley LJ]

From the statutory definition of copyright, it is obvious that there is no statutory requirement for English courts to only protect the expression of ideas under copyright, but this is the approach the courts have taken- as such the rule is solely common law based.[footnoteRef:5] As uncommon to the vast majority of common law rules, the idea/expression dichotomy is subject to a great amount of flexibility, which usually leads to uncertainty; this is evident in the dilution and, arguably, deviation of and from the principle by English courts in most of the key post-Hollinrake cases. [5: Mayer Brown LLP, Fundamental questions about the scope of copyright protection for software to be referred to the European Court of Justice (Lexology, August 3 2010) http://www.lexology.com/library/detail.aspx?g=b25e53e3-bb53-4f60-a640-377439fb27b4 accessed 15 February 2014]

The post-Hollinrake position casts some doubt on the continuing relevance of the principle in modern copyright law. The essay will consider the implications of the post-Hollinrake applications of the principle, and then the practical relevance of the principle will be examined, followed by a suggestion of possible reform(s).

POST-HOLLINRAKE APPLICATION In Designers Guild Ltd v Russell Williams (Textiles) Ltd[footnoteRef:6], Lord Hoffman held that a copyright may express certain ideas which are not protected because they have no connection with thenature of the work. By this statement, Lord Hoffman laid a revised test for what copyright is and protects- copyright only protects ideas that are expressed and the protection does not go beyond the expression. In addition, except where there is a patent protection, anyone can use the idea in his or her work, irrespective of how striking or original the idea is. [6: [2006] UKHL 58.]

This case only made a modest modification to the idea/expression dichotomy, the gist of the principle as expressed in Hollinrake remains. In LucasFilm Ltd and Others v Ainsworth and Another[footnoteRef:7], the court held that it would not accord with the normal use of language to apply the term sculpture to a helmet used in a science fiction film, as such the helmet was not protected by copyright as a sculpture under s.4 CDPA. The court held that the helmet was only an element in the production of the film (which is copyright protected). Interestingly, the court agreed that the argument for copyright protection, on the grounds that some imagination had gone into the concept- hence it was the expression of an idea. The court appears to be saying that although the helmet was indeed an expression, it was not the kind of expression that is copyright protected- it appears that the court is deconstructing the expression rule, and creating levels of expressions. This is implicit of a quality requirement of expressions, which is not in the real sense necessary for copyright. The court in this case radically modified the idea/expression dichotomy by saying that to enjoy copyright protection, beyond being an expression of an idea, the expression must be of a certain kind (or quality). [7: [2011] UKSC 39.]

In Temple Island Collections Ltd v New English Teas Ltd & Anor[footnoteRef:8]the claimant, a souvenir retailer brought an action for copyright infringement against the defendant for creating a photographic image that infringed the claimants copyright in a monochrome photograph of a red London bus on Westminster bridge. The court held that there was infringement because the common elements between the photographs were casually related and the reproduction was of a substantial part of the claimants work. It was held that the composition of the photograph could suffice as the intellectual creation of the photographer and when expressed in a photographic image is capable of copyright protection. One striking thing about this case is the fact that the two photographs were not similar in style or perspective, they were, in fact, on the face of things almost completely different but the court held that regardless of the perspective, a reproduction of a substantial part (or composition) of the image is an infringement- it appears the court has taken a completely different path from Hollinrake, it appears that they are protecting the underlying idea of the expression and not the actual expression, in protecting the composition rather than the perspective. The court appears to have petrified this deviation by making absolutely no mention to the principle in Hollinrake or the case itself. [8: [2012] EWPCC 1.]

The courts have certainly exercised a high degree of flexibility with the principle, and beyond leaving litigants uncertain about the outcome of a case; it has left the some uncertainty in the practical relevance of the principle. It is such relevance that is to be examined in respect to the operation of the principle, fixation and infringement.

RELEVANCE

It is essential to appreciate the importance of the idea/expression dichotomy in filing a statutory gap on the precise ambit of the copyright protection, the statutes gave no direction and the principle provided a test. The principle is also a founding principle of copyright upon which so much of the modern copyright law is formed, and it has, to a considerable extent, advantages: promoting product competition, determining copyright fixation, resolving substantial infringement issues, etc.[footnoteRef:9] [9: P Masiyakurima, The Futility of the idea/Expression Dichotomy (2007) IIC 38(5) 548.]

Despite the unarguable fundamental, and to a large extent, theoretical advantages of the dichotomy, the practical relevance of the dichotomy examined in regards to the application and implication of the dichotomy as a principle and in regard to other fundamental elements of copyright pose an eminent threat to its practical relevance in modern copyright law.

IDEA/EXPRESSION DICHOTOMY?

There is the fundamental problem of a lack of a litmus test for separating ideas from expressions; with no such test of separation the dichotomy stands in a place of confusion. The lack of a test for separation is becoming more apparent with the advancement in technology that brings with it new categories in which copyright may subsists, which render the dichotomy irrelevant. This is particularly so, because the idea and the expression of the idea are inseparable; this is inherent in computer programs, database, and photography. Also with artistic works where there is no word description of what the idea is, how can anyone but the creator distinguish between the idea and the expression.[footnoteRef:10] The technological revolution has also birthed multimedia works, which are also potentially problematic in separating ideas from expressions.[footnoteRef:11] [10: P Masiyakurima (n.9)] [11: A Christie, Reconceptualisng Copyright in the Digital Era (1995) E.I.P.R. 527.]

Another potential problem with the absence of a litmus test is the fact that there is no way of checking the courts flexibility in the application of the principle, and this is counter-productive in the sense that copyright law serves, beyond economical exploitation, the purpose of encouraging creativity, if creators do not know exactly when they may be found liable for infringement it impairs creativity.

FIXATION

Fixation is one of the fundamental principles of copyright; an idea must be expressed in some kind of material form for it to be protected within the ambits of copyright- Designers Guild[footnoteRef:12]. It is therefore essential to separate an idea from the expression of the idea in order to determine whether the author has expressed any idea and if the idea has been expressed in form that is copyrightable.[footnoteRef:13] However, the fact is that the notion that there can be an expressionless idea is only theoretical renders and the importance of the dichotomy irrelevant, it is arguable that an idea can only exist if it can be expressed. Practically, if there is no idea that has been expressed in some material/ tangible form, there cant be a need for a copyright proceeding that will warrant the need to separate the idea from the expression- Ladbroke (Football) v William Hill (Football) Ltd[footnoteRef:14]. It is deducible that the idea/expression dichotomy is not practically relevant for the fixation requirement to be met by a work.[footnoteRef:15] [12: (n.6) Hoffman LJ] [13: P Masiyakurima (n.9)] [14: [1964] 1 WLR 273.] [15: P Masiyakurima (n.9)]

INFRINGEMENT

The idea/expression dichotomy in theory, and to some extent in practice, is very useful in determining copyright infringement because it is the starting point- is there a proper expression of an idea in the original work? What is the idea and what is the expression? Has the expression of the idea in the original work been substantially copied by the subsequent work? It is the appropriation of original expression of ideas and not basic ideas that give rise to a copyright infringement- Baigent v Random House[footnoteRef:16]. [16: [2007] EWCA Civ 247.]

However, stemming from the uncertainty evident in the post-Hollinrake cases, the way the principle as so far been applied in English courts is ad hoc and it has tempered the importance regarding copyright infringement issues, this is in fact evident in the Temple Island case. This problem is more pertinent in relation to cases that have different copyright subject matters as there is there is no precise test in applying the dichotomy to them, moreover, the fact that the finding of whether what has been copied by the subsequent work is an idea or expressions of ideas is intuitive, for the most part- lack of evidence and limited time for resolution- further renders the dichotomy irrelevant. Another issue is the fact that it does not apply to ideas that that cannot be expressed differently because they are facts, and with the increasing demand for knowledge there is an increasing need reproduce factual ideas, and the fact that the dichotomy has no relevant application in this regard is only prove to its growing irrelevance.

CONCLUSION

The emergence of the idea/expression dichotomy- copyright protection is only afforded to expression of ideas and not ideas- in the Hollinrake case, was as a result of the need for the courts to bridge a statutory gap, it is a common law rule that has no statutory footing up to date. It is considerably evident from the application of the idea/expression dichotomy post-Hollinrake, that the English courts are gradually deviating from the old principle, as seen in the Designers Guild case to Temple Island case spectrum, because of the lack of relevance in the modern copyright issues that now litigated before the court.While there are arguments for the relevance and importance of the dichotomy in practical elements of copyright, this is contestable on examination. The idea/expression dichotomy has been found to either play a more minimal role than acclaimed or a completely archaic role given the emergence of new technological innovations. It was also gathered, that one of the fundamental problems with the dichotomy and its relevance is the lack of a clear definition of the dichotomy and how it applies to separate ideas from expressions of ideas. While statutory footing has been proposed, the rate of growth in copyright necessitates a degree of flexibility, a more modest reform is that the court give a purposive definition of the principle and apply it purposively, the extent to which this will remedy it position of the principle in modern copyright is, however, uncertain.[footnoteRef:17] [17: P Masiyakurima (n.9)]

BIBLIOGRAPHYCASES Baigent v Random House [2007] EWCA Civ 247 Designers Guild Ltd v Russell Williams (Textiles) Ltd [2006] UKHL 58 Hollinrake v Truswell (1894) 3 Ch 420. Ladbroke (Football) v William Hill (Football) Ltd [1964] 1 WLR 273 LucasFilm Ltd and Others v Ainsworth and Another [2011] UKSC 39 Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1

JOURNALS A Christie, Reconceptualisng Copyright in the Digital Era (1995) E.I.P.R. 527. Mayer Brown LLP, Fundamental questions about the scope of copyright protection for software to be referred to the European Court of Justice (Lexology, August 3 2010) http://www.lexology.com/library/detail.aspx?g=b25e53e3-bb53-4f60-a640-377439fb27b4 accessed 15 February 2014 P Masiyakurima, The Futility of the idea/Expression Dichotomy (2007) IIC 38(5) 548. WIPO, What is IP? http://www.wipo.int/export/sites/www/freepublications/en/intproperty/450/wipo_pub_450.pdf