A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law

20 Pages Posted: 11 Aug 2003 Last revised: 8 Mar 2009

See all articles by Abraham Drassinower

Abraham Drassinower

University of Toronto - Faculty of Law

Abstract

The paper offers a rights-based, Kantian interpretation of the idea/expression dichotomy in the law of copyright. It demonstrates that the idea/expression dichotomy normatively structures the relation between the parties to a copyright action in terms of their equal rights to authorship. To the extent that the defendant has not copied the plaintiff's expression but has instead expressed an idea anew, the defendant has exercised her own authorship. The limits of the plaintiff's right (i.e. the law's refusal to copyright ideas) are therefore the contours of a public domain that, as a matter of equality, the plaintiff himself must be held to recognize. The public domain is not externally imposed upon but internally constitutive of authorial right. Thus the paper shows that a Kantian understanding of the fundamentals of copyright questions the perceived opposition between authorial right and public domain that informs much of contemporary copyright discourse. In so doing, the paper establishes the largely neglected possibility of a rights-based defense of the public domain.

Keywords: copyright, idea/expression dichotomy, public domain, Kant, Locke

Suggested Citation

Drassinower, Abraham, A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law. Canadian Journal of Law and Jurisprudence, Vol. 16, January 2003. Available at SSRN: https://ssrn.com/abstract=418685

Abraham Drassinower (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
(416) 978-4408 (Phone)

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