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Idea, expression dichotomy in copyright

This instalment will interrogate the nature and scope of the dichotomy (dividing line) between ideas and form of expression in copyright protection.

Report by Richard Pasipanodya


To recap from our previous contribution, it is trite to note that copyright protection extends to the expression given to ideas and not the ideas themselves.

Protection is automatically accorded upon fixation or compilation of the works without need for registration. The artistic merit or quality is irrelevant, as is the quantity of the work. The subject matter of production may be ornate, commonplace, utilitarian, banal or complicated.

Classification of nature of works

By ornate is meant copyrightable work that is detailed, elaborate, posh or expensive. Commonplace on the other hand, connotes works which do not possess remarkable features.

It is work whose constituent characteristics or traits are ordinarily perceived as inherent. In other words, it is work which is considered obvious, trite or dull to the consuming public because of its predictability.

This is unlike complicated works which are a collation and application of intricately-fused constructive interconnections that are difficult to either analyse, comprehend, understand or explain. Such works are viewed as sophisticated. Meanwhile, utilisation works are those that are viewed as maximising the aspirations and specific goods of the consumer or end-user. In other words, these yield satisfaction of societal needs, hence improvement on national welfare.

Ideas are concepts underlying the expression, while expression is the manner or form of capturing those concepts. In other words the ideas are the building blocks which evoke attitudes and memories as per given manner of form of their arrangements.

The expression would thus be given its form by the preferred expression. In this context ideas are formed or implanted in the author’s mind such that if they remain as abstract thoughts in the author’s mind they of course do not qualify for copyright protection.

To be protectable the conceived ideas have to assume a tangible physical form. In other words, the ideas would have to display a concrete form which is appreciable by any one or more of our five senses.

It is then the author ought to conjure up details of the manner or form to unravel these ideas and effectively transmit their message to the intended consumers or end users.

For example, a novelist would have to think of appropriate characters, scenes and plots to use to effectively capture the audiences. In so doing the author will have to use their knowledge of the subject matter and skill by which to portray and communicate same.

In as much, the artist would have to think of the appropriation of effective perspectives, colour, light and shade.  In the process there is quite an amount of research undertaken, combined with the requisite skillful imagination in arriving at the best mode of communicating,  concretising or expressing these ideas. Only then will copyright avail.

Idea and expression

From the foregoing we learn that ideas are not conceived in isolation but inextricably with the mode of expression so as to action or clothe them into an effective tangible form. The issue then is how to determine where the idea stops and where the expression starts.

This is by no means a stroll in the park as the boundary is ill-defined.

This is particularly so in view of the very broadness of copyrightable works as some would be simple and some complex. The works themselves may relate to innovative, commonplace, utilitarian or banal subject matter. It is thus the prerogative of the author to elect the way in which they want to express the conceived ideas. This may be done ornately, simplistically, in a complicated way or crudely.

Idea and expression may merge

Having stated above both the idea and mode of expression entail a thought process by the author and the nature of works also influences the choice and mode of expression, we find idea and expression may merge. This is particularly so where the subject matter is so narrow as to warrant various forms of expression.


Translations being verbatim changes of language used do not worry us much when it comes to the dichotomy between ideas and expressions. It is when such translations entail the addition of nuances and subtleties that this issue arises. For, in coming up with the nuances and subtleties, the translator would be expressing their added views to the author’s own perspectives.

These, again are the subject of interrogation about idea and expression dichotomy.

The adaptor may adapt a novel into a dramatico-musical, dramatic or musical piece of work. In doing so they undeniably would be transforming the idea and clothing it with a befitting expressive form which best conveys their conceived version of the ideas, of course with a largely different target audience.

In such a scenario the dichotomy between the underlying ideas and the preferred mode of expression would be very tenuous.

Database compilations
Database creation entails selection and arrangement of existing factors such as is the case with telephone directories. An author may compile a list of all doctors in the country in alphabetical order. This would be the usual approach in which the facts are collected from existing data for which the effort and skill used is deminimis and the end product commonplace.

The scenario would be slightly different though where the doctors’ directory is arranged by way of specialty, say dentists, gynaecologists, orthopaedic surgeons, etc. In this case, though these are existing facts, this time more thought is applied as to merge the idea and expression.
Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: Mobile +263 775 053 007 or e-mail henripasi@gmail.com

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