11. The Idea/Expression Dichotomy
Learning Objectives: Unit 11
Upon completion of this unit, you should be able to:
- Recall the facts and legal holding of Baker v. Selden.
- Explain the idea/expression dichotomy.
- Recall the statutory components of the idea/expression dichotomy.
- Analyze fact patterns in terms of the idea/expression dichotomy.
In the previous class we discussed the idea that copyright is limited to material that possesses the requisite “originality,” and does not extend to facts. Rather, copyrightable subject matter is limited to creative expression. We will explore another key limit on copyrightable subject matter: the idea/expression dichotomy. Baker v. Selden, involves copyright over blank forms in a book describing an accounting system and long predates our modern copyright act. (The most relevant provision of the Copyright Act of 1831 is provided below.) However, it is frequently referred to as a foundational authority for the distinction between expression, which can be copyrighted, and ideas, which cannot. After reading Baker, you should look at the way that this “idea/expression dichotomy” has been articulated in contemporary statutory law at 17 U.S.C. § 102(b). As we discuss this dichotomy, we will also talk about situations where there is only one or a few ways to express a particular idea.
Copyright Act of 1831
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That from and after the passing of this act, any person or persons, being a citizen or citizens of the 15 United States or resident therein, who shall be the author or authors of any book or books, map, chart, or musical composition, which may be now made or composed, and not printed and published, or shall hereafter be made or composed, or who shall invent, design, etch, engrave, work, or cause to be engraved, etched, or worked from his own design, any print or engraving, and the executors, administrators, or legal assignes of such person or persons, shall have the sole right and liberty of printing, reprinting, publishing, and vending such book or books, map, chart, musical composition, print, cut, or engraving, in whole or in part, for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed. (The full text of the act can be found at: https://www.copyright.gov/history/Copyright_Enactments_1783-1973.pdf)
