An Analysis Of The Dichotomy Of Idea And Expression In Copyright Law

In the field of Copyright Law, there is an important rule called "Dichotomy of Idea and Expression". The basic meaning of this rule is: Copyright Law only protects Expression instead of Idea itself. Under this rule, works, the object protected by Copyright Law, are divided into Idea and Expression, and Copyright Law only protects Expression instead of Idea itself.This paper tries to analyze the doctrine from five aspects to get the fundamental testing technique on how to apply the doctrine, that is, how to divide the boundary between Idea and Expression, and, on the other hand, this paper tries to confirm existences of infringements with the help of other doctrines of Copyright Law with the purpose of establishing and crystallizing of this doctrine in China Copyright Law.Chapter I describes the establishment of Dichotomy of Idea and Expression. On the basis of summarizing Dichotomy of Idea and Expression, this section analyzes the origin & development of the doctrine and the establishment in the Copyright Law of America and the other countries or regions;Chapter II analyzes the rationality of Dichotomy of Idea and Expression. From the benefits of both the author and the public, this section analyzes the legal theoretical base of existence of the doctrine- fully displaying the balance of interest of Intellectual Property Law to prove the necessity of establishment and concretion of this doctrine in China Copyright Law;Chapter III is about the application of Dichotomy of Idea and Expression. Starting from the definition of the doctrine, this chapter analyzes its application in judicial application and related problems by combining with two cases which are similar in details but are totally different in the final judgment. And on the basis of referring to different testing techniques of the common law system and continental legal system on how to divide the boundary between Idea and Expression, this section puts forward that in some cases we may use clear distinction test and abstraction test, and in the complicated cases, we should insist on the criterion of originality to divide the idea and the expression for the blurry land between the pure idea and expression.Chapter IV illustrates Dichotomy of Idea and Expression and cognizance of copyright infringement. The establishment and concretion of Dichotomy of Idea and Expression mainly involves two aspects in China Copyright Law, that is, how to divide the boundary between Idea and Expression on the one hand, and how to confirm the existence of infringements on the other hand. Starting from four aspects, this section analyzes the combination of the doctrine with the other doctrines in the Copyright Law to confirm the existences of infringements in a comprehensive way.Chapter V elaborates on the concrete application of Dichotomy of Idea and Expression in China Copyright Law. On the basis of forgoing analyses, this chapter makes suggestion on legislation for concrete application of Dichotomy of Idea and Expression in our country Copyright Law.There are no conflict between Dichotomy of Idea and Expression and the existing Copyright Law system in China. Judging from the method which confirms infringements in the Copyright Law, regardless of principle of substantial similarity or "syllogism" the right infringement recognizes or reasonable use system, we must take the division of Idea and Expression as the theoretical support in confirming infringements of certain works. In fact, from the protection practice of copyright in China, this doctrine has already been utilized in the judicial practice in a latent way, and becomes an important principle in law. Therefore, it is necessary to make this doctrine clear in current Copyright Law of China so as to bring its due role into full display.