The Distinction Between Idea and Expression

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 15

It has already been stated that copyright protects against the unauthorized copying of an author's "expression," i.e., the particular pattern of words, lines and colors, or musical notes, and not against the copying of an underlying idea. This is a principal way in whixh copyright "promotes the progress of science and useful arts/' as contemplated by the Constitution, and is also a principal way in which the scope of copy right protection differs from that of patent protection. Although it is easy to secure a copyright--all that need be done is to "fix" an uncopied work-and although copyright lasts much longer than a patent, the scope of copyright protection is much "thinner" because it is limited to the expression. Although copyright protects against more than literal copying, and also bars paraphrase, abridgment and other "derivative works," it does not afford an exclusive right to ideas, methods, facts and the like, no matter how startling the discovery or arduous the effort.

The major judicial pronouncement of this principle can be found in Baker v. Selden,[21] decided by the Supreme Court in 1879. There, Selden wrote a book describing a new system of bookkeeping, to which he appended certain forms, with various columns and headings, embodying his system; Baker copied the forms with minor changes. Selden claimed that Baker's forms infringed his copyright; he contended that anyone using his bookkeeping system would have to use forms substantially similar to his. The Court framed the issue for decision as "whethei the exclusive property in a system of book-keeping can be claimed, under the law of copyright, by means of a book in which that system is explained."[22] The Court held that copyright in a work that describes a practical method, system or process does not prevent others from putting that method, system or process into use; to secure such exclusive rights, it is necessary for the inventor to satisfy the more exacting requirements of the patent law.

To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters patent, not of copyright..... He may copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book.[23] The Baker Court then held that if it was necessary for Baker to copy Selden's forms in order to make use of the latter's unpatented accounting system, then such copying would not be an infringement.

Where the art [a work] teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.... [The book-keeping system] was not patented, and is open and free to the use of the public. And, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.[24].

Despite the Court's suggestion that the forms appended to Selden's book were subject to copyright and could be infringed by persons copying the forms for "explanatory" purposes rather than for "use," the Court somewhat confusingly concluded its decision by stating: "The conclusion to which we have come is, that blank account-books are not the subject of copyright."[25].

Baker v. Selden therefore stands for at least three important propositions in copyright law: (1) Copyright in a work does not cover ideas, concepts and systems described therein, but only the form of expression in which they are communicated; (2) if in order to duplicate or put into use an unprotected idea, concept or system it is necessary substantially to copy another's otherwise copyrightable expression, such copying is not an infringement; and (3) blank forms-i.e., forms used for the recording of information rather than for explanation-are not eligible for copyright.

The first of these propositions, the most important, is now embodied in section 102(b) of the Copyright Act: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." In the words of the House Report, section 102(b) "in no way enlarges or contracts the scope of copyright protection" under prior law; its purpose "is to restate... that the basic dichotomy between expression...