I’ve been discussing the “idea-expression dichotomy” of copyright law with my colleague, Jon Festinger, QC, en route to an article I’m writing on the intersection of intellectual property and protection of privacy. In particular, I’m looking to develop approaches to intellectual property law in the maelstrom of current and impending changes to the ways we create and exchange creative works. Two notions have come up:
One: Jon said the idea-expression dichotomy is not wrong. I agree in part. Copyright protection is attracted by the fixation of expression, and not by the notional birth of idea. It is not until the idea is expressed that we ponder intellectual property protection, and it is the expression of the idea that is protected ¬– not the idea itself. The dichotomy is a comparison of two components of creative work; it is a statement of which component is protected (expression) and which component is not (idea). I don’t see it truly as a dichotomy, however, which is why I only agree in part. More on this soon.
Two: When going over some of what follows here, Jon and I agreed that the problem is in fixation. In the sense of it being the endpoint of the creative process, fixation is an obsolete concept. In an emergent era in which the cyclic nature of creativity is more apparent than ever, the moment of fixation becomes a locus on a communication continuum rather than the endpoint of a work.
Fixation is vanishing because of technological change, despite attempts to locate it and guard it through licensing and statutes that are increasingly grasping at the ungrabbable. The loss of fixation becomes the problem going forward, because we lose our moment of protection; however, fixation has never really been the right moment. If fixation is the problematic moment of protection, and we are losing it, what replaces it?
By re-examining the idea-expression dichotomy to find what we are want to protect, we can perhaps discover that that protectable thing doesn’t require fixation, but an explicit demand for protection.
First, let’s go back to the “idea-expression dichotomy”. The separation of idea and expression is not wrong:
Ideas are not protected, but expression is. Why? Continue reading