Trying to Agree on Three Articles of Law: The Idea/Expression Dichotomy in Chinese Copyright Law

1 Cybaris: An Intellectual Property Law Review 62 (2010)

37 Pages Posted: 24 Mar 2010 Last revised: 27 Jul 2013

Stephen McIntyre

Independent

Date Written: March 18, 2010

Abstract

The idea/expression dichotomy, which holds that copyright protection extends only to expression, but not to ideas, is internationally recognized as a basic principle of copyright law. Yet despite the doctrine’s fundamental importance, China has not codified it in its general copyright statute. This legislative failure threatens to undermine the public-oriented goals of copyright and presents a dilemma to Chinese courts, which are not authorized to make or develop doctrine through recognition of judicial precedent.

This Article provides the first in-depth study in English of the idea/expression dichotomy in Chinese copyright law. It demonstrates that, even though the doctrine is not codified, it is widely acknowledged among Chinese academics and regularly applied in Chinese courts. The doctrine has faced linguistic, cultural, and conceptual challenges in China, and early court decisions left much to be desired. Nonetheless, an analysis of recent judicial opinions reveals that modern courts understand the idea/expression dichotomy and apply it in a reasonably coherent and defensible manner. Their exposition of the doctrine is largely, although not entirely, consistent with its underlying purpose of promoting free speech and safeguarding the public domain.

The courts’ relative success in filling this statutory hole suggests that Chinese judges play an underappreciated, but crucial, lawmaking function. This finding in turn raises intriguing questions as to the authority and function of China’s judicial system generally.

Keywords: China, copyright law, intellectual property, idea/expression dichotomy, judges

Suggested Citation

McIntyre, Stephen, Trying to Agree on Three Articles of Law: The Idea/Expression Dichotomy in Chinese Copyright Law (March 18, 2010). 1 Cybaris: An Intellectual Property Law Review 62 (2010). Available at SSRN: https://ssrn.com/abstract=1574489

Stephen McIntyre (Contact Author)

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