Protection: Mere Idea or Expression of Idea?
Recently there are critics saying that the judgment of the Larrikin1case departed from the original copyright principal. Originally the copyright is infringed only if the expression of idea is taken. It is important to “separate unprotectable ideas from protectable expression”.2 Yet some critics claimed that nowadays court will find infringement has occurred where what has been taken is merely an idea, one example was the Larrikin3case. I am going to examine these in detail. Firstly it is noteworthy to mention some commentaries on music copyright. “When considering the area of musical works, it is necessary to regard music as a language, with its own vocabulary and structure”.4 However, there is no explicit definition defining musical work, which means that the “copyright in musical work remains an abstract concept”.5 Moreover, “the copying of musical ideas and motifs from a musical work, which are not themselves original, will not normally constitute infringement of that musical work”.6 It means that only musical works which are purely original will be given the copyright protection, whether it is representing the mere idea or expression of idea does not matter much. Referring back to the Larrikin case, in my opinion, the reasoning of infringement did not depart from the original doctrine. The court still judged on the expression of idea. In that case, the “four-part round”7was the relevant musical idea, which was “explicable in the abstract”.8 One will not be liable if he has only taken the “idea of the basic melody”.9 In our case, “the specific melodies or phrases that constitute the expression of the idea of a four-part round will, in total, constitute an original musical work”.10 Therefore, as there were combinations of melodies from at least 4 different bars, not only should this work be held as an expression of idea but not a mere idea, but also it should be given the copyright protection as it is reasonably to be inferred as original. The combination of the 4 bars already indicated the novel originality of the original author. It is reasonable that the court held the subsistence of copyright. As the person who “stole the idea” copied all the 4 special bars, which skill and labor was expended on that, it was reasonable to find infringement on that case. Whether the part taken is a mere idea or an expression of idea does not matter, as long as the work was the original work of the author, infringement should be established. Therefore, we can conclude that the Larrikin case did not present danger to the creativity and free flow of ideas as the judgment did not depart from the original principle. In fact, sometimes it is a common practice that the court does not care whether the relevant work is an idea or expression of idea, what the court matters is whether the work created is original. “Protection is not only an issue of idea versus expression, but is also an issue of the character's presence in relation and proportion to the rest of the work”.11 It reflects that the originality of the content matters a lot. Also, in deciding the originality of a literary work, “the focus of consideration is not upon creativity or novelty, but upon the origin of the work in some intellectual effort of the author”.12 Actually, the Ice TV13 case, which was the leading authority in Australian copyright cases, also echoed the view of putting emphasize on the originality of work when determining whether there is an infringement. The Ice TV case also held that sometimes it was useful to address the skill and labor expended as it might indicate that the particular form of expression adopted was highly original. Sometimes as the line between mere idea and expression of idea is difficult to draw, especially in a musical work, this determining factor is not useful. It is even more effective to judge on the level of skill and labor expended when determining whether copyright protection should...
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