Idea/Expression Dichotomy In Modern Copy Right Law

The doctrine of idea/expression dichotomy has been regarded worldwide as a basic principle in copyright law. This principle was codified for the first time in 1976 in American Copyright Act .The TRIPS and the new WIPO Treaties have confirmed this doctrine in the same way of enumeration. But in most countries of the continental legal system, this doctrine has been only applied in case law because its vague meaning is hard to be codified. The most difficult problem of this doctrine is how to define the word"idea"and"expression"and make distinction between them. Some commentators have criticized that continued recognition of the dichotomy is neither justified nor helpful in deciding cases. Given the difficulty of defining the terms of the doctrine, some courts have developed an "abstractions" test or a "patterns" analysis, which purports to place a given work along a continuum between idea and expression. The general principle embodied in it is supposed to help in resolving particular cases in accord with fundamental copyright values. As far as legislation of china is concerned, Copyright Law of did not proscribe this doctrine, The Regulations for the Protection for Computer Software has proscribed it. However, theory of this doctrine still has not been paid enough attention.This article does not purport to provide the ultimate definition of idea, but only to introduce an epistemological approach to the analysis of the distinction of idea-expression dichotomy。Further, this article will search to construct this doctrine in modern theory of Chinese copyright law. The methodology of this project is Functionalism and Epistemological Analysis. Functionalism is the view that the realization of a functional component is not in its essence but in terms of its role in relating inputs to outputs and its relations to other functional components.From the traditional view, this doctrine is a crucial means to limits the scope of the author's entitlement in light of the public domain. A recent view, On the contrary, holds that the role of the idea-expression dichotomy in copyright law is not a limiting one, but an expansive one. Courts are free to grant protection to borderline categories of works that combine elements of idea and expression. My standpoint is that: The dichotomy's theoretical base is in our understanding of human creative process. From the classical conception of the creative process, the view that the "expression" in a...