Copyright law seeks to protect the expression of ideas rather than the idea itself. There exists no copyright in relation to an idea, subject matter, themes, plots, or historical/legendary facts. Infringement is restricted to only forms, manner, arrangement & expression of the idea by the author of the copyrighted work. It becomes extremely difficult to locate this dichotomy between idea and expression. The courts have tried to address the issue by evolving tests for understanding where the idea ends, and the expression of that idea begins.
The Jurisprudence that can be deduced from the Indian judicial decisions in this respect is scrutinized in this paper. Through this analysis, I will demonstrate how some misadventures in the judicial application of the idea-expression dichotomy strikes the very roots of Copyright Law. This is made evident by an assessment of the tests devised in R.G. Anand to explicate, amongst its correct reasonings, the lack of concrete guidelines for separating ideas from expression. This deficiency combined with the misapplication of the ‘additional viewer test’ is shown to create complications.
This paper will show how R.G Anand’s inadequacies, and the paucity of methodological approaches incorrectly applying this doctrine, consequently, allow the High Courts to apply their own interpretation and understanding of the idea-expression dichotomy. This leads me to conclude that India is yet to develop a robust understanding of this basic principle in copyright law.
This paper seeks to trace the jurisprudence around the idea-expression dichotomy in India since R.G. Anand and how the doctrines developed in this particular case has been subsequently misapplied in multiple judgments. In order to establish the same, the sources that I have primarily relied on are:
‘Idea-Expression Dichotomy and Originality Requirements for Copyright Protection: An Analysis of Jurisprudential Underpinnings of the Judicial Pronouncements in India’. This paper analyses cases dealing with the issue of idea-expression dichotomy and discusses the defences/exception to this concept to arrive at the conclusion that these cases have only created further ambiguity.
‘Copyright Protection for Computer Programs: Walking on One Leg?’ by Yogesh A. Pai. This paper analyses how the idea-expression doctrines have been misapplied by the High court’s making it unsuitable for determining copyright infringement with respect to computer programs.
The book ‘International copyright: principles, law, and practice’ § 126.96.36.199. This book helped me appreciate the importance of consistency, in the application and methodology of this doctrine. This is in order to counter its easily plausible misapplication arising from its inherently malleable nature. This understanding was required to recognize misapplications in the Indian context, and their impact on the balance Copyright Law seeks to create.
This paper develops on the literature in the past along with case laws on the idea-expression dichotomy to show that since the tests devised in R.G. Anand did not lay down concrete guidelines for separating ideas from expression, it consequently allowed the High Courts to apply its own interpretation and understanding of this doctrine leading to its erratic application.
The idea-Expression dichotomy lives at the centre of copyright law. It essentially entails the limitation of functional claims over copyrighted work. More broadly, it implies that monopoly through copyright protection may only include the original expression of ideas and not the ideas themselves, how so original they may be. This model of determining copyrightable subject-matter is useful in balancing the need to afford incentives for creativity against the public concern towards the free-flow of ideas.
The applicability of this doctrine comes into existence when we recognize that copyright protection must extend beyond the literal aspects of a work. If protection is limited to such copying, then one can escape copyright infringement by making inconsequential variations in the original work. The American Courts in Nicholas v. Universal Pictures were the first to appreciate this verity by expressly affording protection against non-literal instances of copying. The same case also recognized the difficulty in ascertaining idea from expression and that such ascertainment essentially needs to be ad-hoc.
To separate an idea from an expression using a consistent and well-justified methodology is paramount for the positive manifestation of the idea-expression dichotomy, and to prevent its balancing objectives from being left-over as a mere hypothesis. The imprecise nature of this doctrine requires lawmakers and judiciaries to take clear and conceptually robust stands on what may constitute protectable expression. If not, they may fall victim to the inherent malleability that underpins the ambiguous nature of this doctrine.
ANALYSIS OF INDIAN JURISPRUDENCE
In the Indian context, the position on the idea-expression dichotomy is shallow. This is partly due to a dearth of cases contributing to the conceptual development of this doctrine, and partly, because of some misadventures in deciphering its very roots.
Statutory copyright law in India does not specifically exclude ideas from protection and the dichotomy does not find its underpinnings here. However, in the case of RG. Anand v. Deluxe  films were the first to accept this doctrine as a well-settled principle by relying on various authorities, both Indian and foreign. This is the only Supreme Court case on the matter.
It held that “an idea, principle, theme, or subject matter or historical or legendary facts” cannot be copyrighted but provided little guidance on how these abstract elements were to be separated from their protectable counterparts. The abstraction test from the Nicholas case found no reference here, although, a similar concept was introduced in recognizing that- when an idea is constantly re-expressed in different ways, there may be an increasing similarity with the original expression due to a common source, and that at a certain level, this similarity becomes fundamental. It is at this level (where the idea is sufficiently delineated), that it may afford copyright protection. 
The deficiencies with this reasoning, are comparable to that of the abstraction test as it was in Nicholas. Both these cases make it clear that non-literal copying affords protection and that at a ‘certain’ level of abstraction, the element becomes unprotectable, however, there is no clear guidance on how one closes on identifying this ‘level’.
To reconcile with this issue, R.G Anand introduces the ‘additional viewer test’, under which a copyright infringement will exist if “the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.” Here, the word ‘impression’ suggests a ‘look and feel’ approach to the works being compared, but there is no guidance on what specific aspects of these works (i.e. ideas or expressions), need to viewed when making this comparison. It may seem obvious that this comparison excludes elements beyond a ‘certain’ level abstraction, but this is not a natural consequence of the courts reasoning. This inadequacy creates a major complication as without having any guidance on how to approach the separation of idea and expression, one is expected to make an ‘unmistakable impression’ of whether a work is the copy of another. This is in essence, is analogous with putting a blind man in the driver’s seat.
A thorough assertion that ‘the additional-viewer test’ needs to be founded on the distinction between idea and expression (even though there is no clear-cut method to approach this), would at least prevent the blatant disregard of idea-expression dichotomy by cases relying on this ruling. Unsurprisingly, the blind man crashes, as we will see in the following case.
In Sulamangalam v. Meta Musicals, the Madras HC relies on R.G Anand to conclude that “sufficient objective similarity” is required to constitute infringement. The court fails to substantiate the meaning of ‘objective similarity’ and without appropriate justification, one can easily mistake this as ‘general similarity’. This possibility arises as, even though the rationale of R. G Anand (regarding idea-expression dichotomy) is considered by the court, the ‘unmistakable impression’ of the additional viewer test, is applied in total isolation from ‘expression’. In other words, the court neglected the fine distinction between ideas and expression when considering the ‘look and feel’ of the concerned works. They said, “On comparison through display, it is clear that the listener after having listened to both the [musical] works would be of the opinion and unmistakable impression that the infringement work appears to be the copyrighted work.”
The literal and simplistic application of the additional viewer test in this case, has clearly caused the engulfment of ideas within the realm of copyrightability. This obvious disregard to idea-expression dichotomy is visibly rooted in R.G Anand’s inadequate assertion towards the congruent use of ‘additional-viewer test’ with this doctrine. By no means is this error is an isolated incident, as will be shown below.
In Raja Pocket Books v. Radha Pocket Bookscharacter. The plaintiff asserted copyright in the name ‘Nagraj’, as the defendant had created another comic character with the name ‘Nagesh’. Along with the phonetic and visual similarities between both characters, certain underlying concepts in their portrayal bore a resemblance. The court reiterates R.G Anand by admitting that an “idea, subject matter, themes, … legendary facts” cannot be copyrightable, however, they failed to appreciate its essence by mistaking higher levels of abstraction (which actually constituted ideas), with expression. Here, the manner and arrangement of both storylines were ignored by a simplified application of the ‘additional viewer test.’ The ignorance of idea-expression dichotomy when deciphering the ‘look and feel’ of both characters becomes clear from the following statement- “not only the theme is the same, though presented slightly and somewhat differently, but the central its idea remains the same.”
Though the court was contemplating that its basis of comparison was in line with R.G Anand, it essentially relied on the overall impression of both characters with utter disregard to level of abstractions being equated. The following excerpt makes this especially clear- “Similarly about the theme of visual, phonetical similarity and overall impression of the two works that the same is likely to deceive such a man or cause confusion that he may make mistake in the goods of defendant for that of the plaintiff.”  This culminates at the end of the judgement and represents the faulty analysis of the entire case. First, R.G Anand explicitly rejects “themes” from copyright protection due to their inherently high levels of abstraction. Second, ‘overall similarity’ is a drastic simplification of the ‘additional viewer test’, a pitfall that is already discussed above.
The third and the most absurd reasoning belongs to the importation of the trademark criterion, i.e., “likely to deceive such a man or cause confusion.” Adding to this, the ‘doctrine of fading memory’, i.e., assessing the ‘impression’ from the viewpoint of an average person with imperfect recollection, is applied to approach the comparison. This application is akin to that of ‘deceptive similarity’, which again, is a trademark concept. This case, therefore, is a wholesome distortion of the propositions laid by R.G Anand and discarding its value on grounds of doctrinal incoherence with the basics of idea-expression is easily plausible.
A poorer instance of misreading R.G Anand is Anil Gupta v. Kunal DasguptaHC granted an injunction against a television show on grounds that it infringed the copyright resting in a “detailed concept note” of another television show. Although it recognized, in line with R.G Anand, that a concept cannot be granted protection, it botched the application of the same. The court’s reasoning hinted that an idea if transcribed in adequate detail, would constitute copyrightable subject-matter.
It seems obvious that a concept note (even vastly detailed), for a show projected to run for several hundred episodes, would be nothing but a theme or plot, which according to R.G Anand cannot be granted protection. Worse, the logic of the judgement largely rested on the transcribed “note” being an original concept, which implies that a novel idea (irrespective of its of expression), may afford copyright protection. The weight here was placed on ‘novelty’ (in the garb of ‘originality’), rather than looking for a delineated expression of the idea. This is a blatant inclusion of patent-law principles to determine copyrightability and implies not just a misreading of idea-expression dichotomy, but a poor understanding of ‘originality’ itself.
To make it worse, the court’s cumulative argument read- “if the defendant is allowed to show their own reality show based on the concept originally conceived by the plaintiff, it will be allowing the defendant to use that concept and to reap the fruit of labor of the plaintiff.” This statement is not only representative of the inaccuracies pointed above but highlights the underlying economic reasoning behind the decision. It is well-settled that idea-expression dichotomy with regards to transcriptions (like the concept note here), may pose analytical difficulties when they do not constitute the end-work. This is because in such form, the idea, howsoever delineated, may not be considered valid expression considering its distance from the proposed end-result. Such a highly detailed (but unprotectable) idea may have high economic value, but ‘copyright law is not designed to maximize the economic returns to the creator’ and the non-contextual application of the excerpt above, shows the courts disregard towards this basic principle.
Zee Telefilms v. Sundial Communications reiterated faulty understanding of the idea-expression distinction laid out in the Anil Gupta case. It afforded protection to a concept note due to its ‘detailed’ transcription and relied on the ‘theme’ of the story for locating infringement. The comparison involved an excessively simplified application of the ‘additional viewer test’, which as shown above, is certain danger. The fact that this test is so easily misapplied, may find its underpinnings in R.G Anand’s weak assertion concerning its application, strictly in congruence with ‘expressions.’ However, this does not save the court from their brazen consideration of the ‘theme’ in determining copyright infringement. This issue has not been addressed by the Supreme Court yet, and copyrights continue to be granted based on Anil Gupta’s holding. 
The discussion above shows us how the deficiencies of R.G Anand, play out in the lower’s courts understanding of Idea-Expression Dichotomy. Some instances are not limited to a poor understanding of the Supreme Court precedent but strike at the heart of Copyright Law. The lack of consistency in the application of essential concepts draws me to conclude that the Indian jurisprudence on the matter is in dire need of inspection. The misapplication of Idea-Expression dichotomy is conceivably a symptom of the dearth of cases engaging with it on a conceptual level.
 Agitha, T. G. “Idea-Expression Dichotomy and Originality Requirements for Copyright Protection: An Analysis of the Jurisprudential Underpinnings of the Judicial Pronouncements in India.” Copyright Law in the Digital World. Springer, Singapore, 2017. 1-44.
 Pai, Yogesh A. “COPYRIGHT PROTECTION FOR COMPUTER PROGRAMS: WALKING ON ONE LEG TITLE CASE?.” Journal of the Indian Law Institute 48.3 (2006): 359-399.
 Goldstein, Paul. International copyright: principles, law, and practice. Oxford University Press, USA, 2001, § 188.8.131.52.
 Nichols v. Universal Pictures Corp. 45 F.2d 119 (2nd Cir. 1930).
 AIR 1978 SC 1613
 The SC examined Raghunathan v. All India Reporter, (AIR 1971 Bom 48); Cinniah v. Balraj (AIR 1961 Mad 111); K R. Sharma v. Sangu Ganesan, (1972 Cr LJ 1908); Mohendra Gosh v. Emperor, (AIR 1928 Cal 359); Mohini v. Sita Basak, (AIR 1931 Cal 230); Ramesh v. Nowsheri, (AIR 1965 J&K 101); Dutt v. Law Book Co. (AIR 1954 All 570); Sivakasi v. The United Concern, (AIR 1967 Mad 381.)
 The significant foreign references included Donoghue v. Allied. Newspapers, ((1973) 3 All ER 503); 503; Ladbroke Ltd v. William Bill Ltd, ((1964) 1 All ER 465) and Sheldon v. Metro-Golden Pictures Corporation, (81 F2d 40).
 AIR 1978 SC 1613
 See: Justice Guha, (p.823), R.G Anand v. Deluxe films.
 AIR 1978 SC 1613
 . 2000 (20) PTC 68
 1997(17) PTC84(Del).
 See: Analysis of Sulamangalam v. Meta Musicals, Supra note 11.
 1997(17) PTC84(Del).
 AIR (2002) Delhi 379
 Supra note 12, (Refer to the conflict with R.G Anand)
 Nimmer, Melville B., Nimmer On Copyright, “Treatise on the Law of Literary, Musical and Artistic Property, and the Protection of Ideas”, New York (1978).
 2003 (27) PTC 457 (Bom.).
 The story involved a dysfunctional family whose problems are solved by god, who comes to them as a boy. These are well-known expressions (or to-be expressions) whose underlying ideas lie in the public domain. (Doctrine of Scenes-a -faire) See: Supra note 14.
 See: As recently as 2017, in Zee Entertainment Enterprises Ltd. v. Sony Pictures Networks, AIR 2017 Bom 221. Others: Urmi Chiang v. Global Broadcast News, 2008 (36) PTC 377 Bom; Beyond Dreams v. Zee Entertainment, 2015 (62) PTC 241 (Bom.)
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Author: Avantika Rai
Affiliation: 4th Year Law Candidate, Jindal Global Law School