The Idea/Expression Dichotomy Theory

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The idea/expression dichotomy theory is used to recognise copyright subsistence in the work in some cases. For example, in the United-Kingdom, the requirement of fixation involves that idea that is not reduced into writing or into some tangible form is not copyrightable. But this theory is also used to determine if a substantial infringement occurred, because a court must consider whether it is an idea of an expression of the idea that was taken in the infringing work.

For Bently and Sherman, such a theory is necessary to ‘reconcile the divergent interests of copyright owners with those of users and the public more generally’. Indeed, the goal of copyright is to protect creative and original expressions. However, copyright is not meant
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This can be demonstrated by proving access by the defendant to the plaintiff’s work. To be liable for primary infringement, the person who took a substantial part of a copyrighted work should be aware that this work was protected. The requirement of knowledge can be difficult to apprehend in the context of jokes. Indeed, modern comedians are inspired by former comedians; they also assist to a lot of stand- up shows. All those artists make observations about the world in which they live, so similarities are likely to exist. Thus, it is possible that a comedian get to an apparently original idea that in fact they have heard from someone else. This phenomenon will lead to what is called ‘unconscious …show more content…
Bron case. For the court, plaintiffs must prove not only objective similarity, but that this similarity was due to an act of copying, whether conscious or subconscious. It means that subconscious copying can still be an infringement. In this Francis Day & Hunter case, publishers of a song composed in 1926 sued publishers of another song for copyright infringement. During the trial, evidences of similarities between the two songs were pointed out by musical experts. The defendant proved that he did not copy consciously the original song, which led the court to hold that there was insufficient factual material to infer that the defendant had sufficient knowledge or memory of the previous song. Therefore, there was no evidence to prove that the defendant unconsciously copied the plaintiff’s song. No infringement was found as there was insufficient evidence to infer either conscious or unconscious copying by the defendant. To conclude, the court stated the similarity between the songs was a matter of

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