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The Potential Copyrightability of Ideas

As a general rule, ideas are not protectable by copyright. It is only the expression of an idea which copyright protects (for a long though limited period of time). Referred to as the idea-expression dichotomy, there is, however, a rather thin line between ideas and expressions, and it has never been entirely clear just where an idea stops and its expression begins. To make the situation more complicated are theories such as the merger doctrine and the law relating to scènes à faire.

The merger doctrine states that if an idea can be expressed in only one way, the expression of that idea would not be protectable by copyright law. It is not entirely clear whether this is because the merger doctrine ensures that the idea-expression is not copyrightable in the first place, or because the merger doctrine applies as a valid defence to a claim of copyright infringement. Either way, the doctrine flies in the face of the general understanding, and, in some cases, statutory stipulation,1 that an idea cannot be protected by copyright. For it to apply, the idea must obviously be extremely specific, and must not render itself to being expressed in numerous ways.

The concept of scenes à faire, on the other hand, is not based on the expression of the idea being unique but is based on the expression of an idea being so common that it loses its ability to be protected by copyright law. More accurately, if a particular “scene” is “required” by the type of work into which it is incorporated, it would not be capable of being protected by copyright law. So, for example, if a reality TV programme which televised a music competition were to be broadcast, it would not violate the rights in music competitions which had previously been broadcast merely because of having in it singers, a host, and a band as it would be virtually impossible to develop such a programme without incorporating these elements. Further, an idea being unprotectable, the copyright owners of previously aired programmes would not be able to use copyright law to prevent subsequent programmes with the same themes.

It is based on a combination of these principles that “format rights” which are not traditionally recognised by copyright have emerged. These rights protect specific formats (such as episodic structures) and unique elements of copyrightable works such as television programmes. Although they do not protect mere ideas, if the idea has a detailed enough structure with specific elements in it, it has been found that (at least as far as business practice is concerned), it may be possible to protect the idea in the form of a structured format.

In India, format rights have not thus far been recognised by courts except in conjunction with confidentiality agreements. However, it is nonetheless possible to rely on the 1978 judgment of the Supreme Court in the R G Anand case and the decision of the Calcutta High Court in HT Media Limited v. UTV News Limited & Anr., 2010, to infer that (a) as long as a subsequent work has a unique “look and feel”, and (b) does not copy the unique elements of an earlier work, it would not infringe the rights of the earlier work.

What is interesting though is that while the idea-expression dichotomy which has played a part in creating new rights such as format rights, may now effectively be subject to the new protection accorded to structured formats and protected elements.

The UK case of Allen v. Bloomsbury Publishing Plc & Anr.2 was based on a claim that a subsequent book incorporated the main elements from the plot of an earlier book. Refusing to grant a summary judgment, the judge pointed out, “...copyright does protect the content of a literary work, including the selection, arrangement and development of ideas, facts, incidents and the like.”

The development of ideas is not traditionally protectable by copyright in India. However, considering the Indian copyright law is not entirely oblivious to format rights, it is possible that the scope of what could be protected by copyright would considerably expand in future.

1. § 102(b), 1976 US Copyright Act

(This post is by Nandita Saikia and was first published at Indian Copyright.)