Idea-Expression Divide or Idea-Expression Dichotomy
The first amendment provides that "Congress shall pass no law abridging the freedom
of speech." The idea/expression dichotomy discharges copyright's first amendment
duties because the application of copyright protection to expressions, but not to ideas,
serves to prohibit only speech that is constitutionally valueless.
Idea-Expression Dichotomy is embodied in Section 102(b) of the copyright code. It denies
protection to the ideas which underlie copyrightable works. Only the original
"expressions" contained in these works can actually receive copyright
Intellectual property laws are generally designed to protect the fixed expression of an
idea rather than the fundamental idea itself.
Copyright may not subsist in the idea of a man on an expedition, but may subsist
in a book which follows that expedition. Similarly, if the methods or processes described
in a technical non-fiction work are patentable they may be the subject of various patent
claims, whereas the fundamental underlying idea may not be. An adventure novel provides an
illustration of the concept. Copyright may subsist in the work as a whole, in the
particular story or characters involved, or in any artwork contained in the book, but
generally not in the idea or genre of the story.
The idea-expression divide which is also referred to as idea-expression dichotomy
is a concept which explains the appropriate function of intellectual property laws, which
are generally designed to protect the fixed expression or manifestation of an idea rather
than the fundamental idea itself.
Some of the criticism directed at "intellectual property" is incorrectly based
on the notion that intellectual property laws confer proprietary rights in relation to
general ideas and concepts per se. The concept originated in copyright law.
Justice Hand once stated that illicit copying need not be word for word "else a
plagiarist would escape by immaterial variations." Nichols v. Universal Pictures
Corp., 45 F.2d 119, 121 (2d Cir. 1930).
"Unlike a patent, a copyright gives no exclusive right to the art disclosed;
protection is given only to the expression of the idea--not the idea itself.". Mazer
v. Stein, 347 U.S. 201, 217 (1954)
"the person who has clothed the idea in form, whether by means of a picture, a play
or a book" owns the copyright. Donoghue v. Allied Newspapers Limited (1938)
Copyright may not subsist in the idea of a man venturing out on a voyage, but may subsist
in a particular story which follows.
"Reporting a person's fall from a bus: the first person to do so could not use the
law of copyright to stop other people from announcing this fact." Latham CJ. in
Victoria Park Racing and Recreation Grounds Company Limited v. Taylor (1937).
There are particular ideas that can be expressed intelligibly only in one or a limited
number of ways. Therefore even the expression in these circumstances is unprotected, or
extremely limited to verbatim copying only. In the United States this is known as the
merger doctrine, because the expression is considered to be inextricably merged with the