Protection: Mere Idea or Expression of Idea?
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
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