Module I: The Concept of Copyright,

the Historical Background and the

International Framework.

Contents
Module I: The Concept of Copyright, the Historical Background and the International Framework.
Contents................................................................................................................................................... 1
Objectives ................................................................................................................................................ 2
Study Note ............................................................................................................................................... 2
Introduction ............................................................................................................................................. 3
1.0 The concept of copyright ................................................................................................................... 3
2.0 The History of Copyright protection ................................................................................................. 6
3.0 Summary of the Concept of Copyright, Historical Background and International Framework ...... 16
Further Reading ..................................................................................................................................... 17
Case studies on the key distinction between ideas and expression: ...................................................... 18
Objectives

When you have completed this module you should be able to:

1 Describe in around 200 words the concept of copyright. (SAQ 1)

2 Explain in around 50 words the copyright concept of ‘works’ and be able to give 4 or more
examples (SAQ 1)
3 Explain in around 100 words the difference between copyright (common law) tradition and the
droit d’auteur (civil law) tradition.
4 Site cases denoting the ‘idea’ vs ‘expression’ dichotomy
5 Give in around 300 words an overview of the historical development of copyright.( SAQ 2)
6 Describe in 50 words each of the following international copyright conventions, the Berne
Convention, the TRIPS agreement and the WIPO Copyright Treaty including when they were
adopted and their most recent revisions.(SAQ2)
7 Explain in around 100 words why the Berne Convention formed the basis of the creation of a
single international copyright system. (SAQ 3)
8 Explain in around 100 words the relationship between copyright and development in the context
of the WIPO Development Agenda

Study Note
This introductory module is quite short and should take you around 3 hours to complete it.

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Introduction
This module gives a short introduction to the concept of copyright and to the types of intellectual
property that can be protected by it. So as to place the current interest in copyright in the digital age
into context a brief history of copyright is outlined, including a description of the different ways
copyright is dealt with in the two major legal traditions. These are the common law tradition and the
civil law tradition. The relationship between copyright and economic and industrial development is
also briefly discussed.
The module ends with a description of the relevant international treaties dealing with copyright and
the new international trends in the protection of copyright, linking it with the concerns of
development.

1.0 The concept of copyright

Copyright is a bundle of exclusive legal rights concerned with the protection of literary and artistic
works, often referred to just as ‘works’. The aim of copyright is to promote science, culture and the
arts. This can be done by rewarding the creators of such works by granting them some rights and at the
same time striking a three-way balance between these rights, those of entrepreneurs – such as
publishers, broadcasters, record companies etc. – and the interests of the public. The role of the author
as the creator of the work is central to the Berne Convention. Their creations move science, culture
and the arts further. More creations and more diversity are seen as beneficial. The exclusive rights
allow the author to control, and to benefit from, the reproduction and the communication to the public
of their works. If the market appreciates their works, this could allow authors to make a living out of
their activities and to dedicate themselves entirely to the creative activity which we see as beneficial to
our society. Other authors create irrespective of the financial income that can be derived from it, but
the exclusive rights may in that case generate the financial means necessary to bring the creations to
the wider audience, once more aiding the promotion end enhancement of science, culture and the arts.
And exclusive rights also allow the author in a way to control the authenticity of the work that is
released as being his.

Now listen to the following audio segment to find out how the Berne Convention, a key international
agreement in the area of copyright, ‘defines’ works. The definition consists mainly of a long list but
don’t worry you don’t have to learn it by heart!

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Audio 1 What are literary and artistic works?
According to Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, which is the oldest
multilateral agreement in the area of copyright,

“the expression ‘literary and artistic works’ shall include every production in the literary, scientific and
artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other
writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical
works; choreographic works and entertainments in dumb show; musical compositions with or without
words; cinematographic works to which are assimilated works expressed by a process analogous to
cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography;
photographic works, to which are assimilated works expressed by a process analogous to photography;
works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to
geography, topography, architecture or science. […] Translations, adaptations, arrangements of music and
other alterations of a literary or artistic work shall be protected as original works without prejudice to the
copyright in the original work […] Collections of literary or artistic works, such as encyclopaedias and
anthologies which, by reason of the selection and arrangement of their contents constitute intellectual
creations shall be protected as such, without prejudice to the copyright in each of the works forming part of
such collections”.

This is quite some list, and it is not exhaustive. It only refers to the most characteristic examples of
copyrightable subject matter. Any creation of the mind can attract copyright protection as long as it
meets the requirements of the Berne Convention and the relevant national law. After all, many works
of a very different nature can enhance the promotion of science, culture and the arts.
For example, new technology or technology-based works are also protected, such as computer
programs, databases and multimedia works even though they were not mentioned specifically in the
list read out in Audio 1. Copyright is a flexible tool that is in constant evolution as a result of
technological changes and changes in our society.
But one is, as a starting point, concerned with works originating from the mind of a human author.
Computer generated works exist in some countries, but even then one could argue that in origin it is
the human being that enables the computer to generate the work. Maybe that is so in a more complex
way the author who operates a word processing package on the computer to write a novel or the
photographer who operates a camera (or the camera of his or her cellphone or tablet computer) to take
a picture, but still… The combination of a (human) author and the concept of creation logically lead
on to the idea that the work will need to be original to benefit from copyright protection. ‘Promotion’
of science, culture and the arts implies that there is an addition to the pool of existing material,
whether that ‘originality’ required for such an addition than merely means a minimum investment of
effort and skill by the author or a demonstration of the imprint of the author’s personality, making the
work the author’s own personal expression, is a matter of degree that is left to the national copyright
laws of the members of the Berne Union. What is clear though is that copyright does not operate on
the basis of a mere novelty requirement (such as the one found in patent law) or on the basis of a
requirement of merit of artistic quality.

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One can in this logic also understand that some countries operate a de minimis requirement for
copyright works. There has to be some critical mass to distinguish the work from other works and to
see in it the personal contribution of the author. Names of characters, short slogans or titles come to
mind as works’ that may fail the de minimis rule. Similarly, some countries require fixation with some
degree of permanency before the copyright in a work will be granted. This can be seen as a practical
matter. It facilitates the exact identification of what the work is, which e.g. helps to overcome the
burden of proof in infringement proceedings in which the author alleges that his or her work was
copied to substantial extent. Copyright will because of its very nature after all potentially protect many
similar works, each the own creation of an author (think e.g. of pictures being taken at the same
location by a group of photographers or merely by several photographers). Fixation makes both the
work and the starting date of the copyright work more easily identifiable, but one may also simply rely
on the standard civil law rules concerning the discharging of the burden of proof in this respect.
So the term “literary and artistic works” can be explained in terms of quite a long list but within that
term it is worth looking at the term ‘works’ in more detail.
It is important to remember that copyright protects ‘works’. Works represent the expression of
thoughts and ideas. Ideas and thoughts as such are not protected. That would unjustifiably restrict
freedom of expression, free access to information and free access to raw material, which is essential
for the advancement of culture. Everyone is therefore free to access the idea and to use it, e.g. to
express it in his or her own way. That expression, but nothing more than it will attract copyright
protection. This aspect of copyright represents (part of) the in-built balance between copyright and
freedom of expression.
So, if I conceive the idea of writing a novel about a slave’s life in Ancient Rome, this idea can be
freely copied by anyone. It is only when I express my story in words, either on paper or otherwise, that
I get protection for that particular form of expression. If you take the same idea and express it in your
own way you will get copyright in your expression (and not infringe my copyright) as long as you did
not reproduce my expression. And if you take the mere characteristic of a well-known TV show to
design your own the courts are likely to agree with the Supreme Court of Sao Paulo that you have
merely taken the idea, rather than the particular expression of these idea that attracted copyright
(03/11/2008, case 329.457-4/9-00).
This discussion focusses conceptually on what is inside or outside copyright. The exact level of the
protection that is awarded to copyright and how that level of protection strikes the ‘right’ balance
between protection on the one hand and the ‘need’ of the public to use the work on the other hand is of
course quite a different matter and one that will be addressed in subsequent modules. You should,
however, bear in mind that copyright protection is territorial in nature. That means that a work will
only attract copyright protection if it meets the legal requirements of the copyright law of the country
where protection is sought. Each author has a separate copyright in each country and when his/her
copyright in one country is exhausted it does not mean that all copyrights in all countries are equally
exhausted.
Moreover, copyright can be transferred to others on a territorial basis. For example, a French author of
a novel may have transferred his publication right in France to publisher A and his publication right in
Germany to publisher B. National copyright laws can limit what is transferable, e.g. they can exclude a
transfer of moral rights or whilst allowing a licence to do certain acts covered by the exclusive rights
they can exclude a full transfer or assignment of the whole copyright in the work.
The rest of this short introductory module goes on to give you a little of the history of copyright
protection so that you will be able to appreciate how the development of copyright protection has been
associated with technological developments through the ages.

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2.0 The History of Copyright protection

The history of copyright is one that is closely linked to technological developments. Copyright became
economically significant when cheap multiple copies of literary works could be made. Then it made
sense for the reading public to reward the creator for his/her intellectual effort and to protect him/her
and the publisher from potential free-riders. These were people who either copied the work for free or
interfered with the personal interests of the author in the work. The former activity affects the
economic rights of the author, while the latter affects the moral rights of the author. We will come
back to these rights later.

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Audio 2 When did the first forms of copyright appear?
The appearance of copyright is linked to the appearance of the printing technique. The latter gave a boost to
human creativity and art by allowing the multiplication of human writings and the easier dissemination of
information in the 15th century. The first forms of copyright protection were the granting of monopolies and
privileges to certain ‘stationers’ (predecessors of publishers). The oldest known privilege was granted in Venice in
1469 to Joannis de Spira, who introduced the printing technique in Venice. His privilege consisted in being the
only one to exploit this technique for a number of years. During the 16th century such privileges also appeared in
other European countries, such as England, essentially concerning an exclusive publication right for certain
works, or an exclusive right to reprint in cases where first publication of a work was not subject to a monopoly, or
an exclusive right of importation. Yet, these privileges were given to publishers, rather than authors, and were
seen as a means of protection for the profession of the publisher (who was also the one taking the risk of
publication) rather than an author’s right in the work.

Thus it is evident that it is the industrial and economic development of the country by bringing the
printing technology that prompted the grant of the privilege. This also resulted in dissemination of
information promoting education and culture.
It was only when these privileges became subject to the author’s authorization that the real
foundations for copyright protection were put in place. These privileges, which were widely known in
many European countries, opened the way for the first Copyright Act, which was enacted in England
in 1710. This was the first Copyright Act to grant substantive rights and effective procedures for the
enforcement of copyright. This Act provided that authors had the exclusive right to print their work for
14 years after its first publication. If, after the expiry of this period, the author was still alive, the right
was extended for another 14 years.

Similar provisions were later introduced in Continental Europe. France introduced copyright
legislation in 1791. Before the French Revolution a decision by the Conseil d’ Etat du Roi granted
authors a printing privilege for life. Prussia was also one of the first countries to introduce copyright
protection. The General Prussian Code was introduced in 1794. It protected authors indirectly by
providing that publishers were only protected if they had the author’s authorization. It was also during
this period that the foundations of two large copyright traditions were set out: the common law
tradition (also known as the copyright tradition) and the civil law tradition (also known as the
droit d'auteur or continental law tradition)

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What are the differences between the copyright common law tradition and the
civil law tradition?
The copyright common law tradition places the emphasis on the economic exploitation of the work
and is therefore sometimes seen as favoring entrepreneurs, such as publishers, film producers and so
on. It often also includes phonogram producers and broadcasters under copyright protection. It
achieves that by operating legal presumptions in favor of entrepreneurs and sometimes granting
authors a relatively modest set of moral rights. The civil law (‘droit d’auteur’) tradition places the
emphasis on the reward of the intellectual effort of the author. This is also the reason why it refers to
copyright as ‘authors' right’. It regards copyright as a personality right, a human rights-based right.
Amongst others it often provides for a broader range of moral rights for authors.

The Copyright tradition sees copyright as a property right, as a title that facilitates economic
exploitation. It starting point is a utilitarian approach. That starting point is radically different in the
Droit d’Auteur tradition. Here the idea that creative expression is inherently part of the person and
personality of the human being makes copyright a natural right. That natural right is intimately linked
with the person of the author. Both traditions arrive though at the need to protect authors, as they
create works that are needed for the copyright industries, whilst at the same time the creative
expression of the author also needs to be made available to the public. In other words, whilst the
starting points were radically different it is clear that in practice both traditions often arrive at the same
result, albeit be it by somewhat different ways. Either way though, the system encourages investment
in the dissemination of creative works and promotes the economic growth of the creative industries.
During the 19th century the need for copyright protection became well established. The commercial
interests of certain countries, which exported copyright material, gave rise to a need for reciprocal
copyright agreements with other countries. It was in this spirit that the Berne Convention for the
Protection of Literary and Artistic Works was adopted in 1886.
Historically, copyright was used as a powerful legal tool to encourage the building of the cultural
industries. It started with the printing industry and moved on to sound recordings, films, broadcasting,
etc., responding to technological changes. The full advantages of copyright can however be enjoyed
only if the country has the pre-requisites for building up these industries. This includes creative
people, technological capabilities and consumer that are eager to access copyright works. Thus
copyright protection is closely associated with the economic and cultural growth of a nation. In de
developing world the spread of western knowledge due to colonization increased the demand for
western literature and other copyright works. In many countries these were at various stages printed
and distributed without the permission of the owners of copyright, who are found in the publishing
industries of foreign countries. The demand for books also increased the international trade in
copyright works. The loss for the publishing industries in other territories due to the lack of protection
became at the cross border level therefore was a major concern.
The Berne Convention is the oldest multilateral copyright convention. It establishes a Union for the
protection of the rights of authors in their literary and artistic works. It provides that the personal
connection of the author with a Union country (by nationality or habitual residence) or the first
publication of a work in a Union country secures protection of the work in that country. The
Convention extends that protection to all Contracting States by obliging them to grant national
treatment. This means that they have to treat foreign authors in the same way as their own, unless
where specific exemptions are allowed. The Contracting Parties are also obliged to incorporate into
their national laws certain rights granted in the Berne Convention as a minimum level of protection.
They are however free to offer more extensive protection if they so choose.

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The Berne Convention constitutes the cornerstone of copyright and has been revised on many
occasions in order to accommodate new technological developments. In fact it was revised and
complemented in Paris in 1896, in Berlin in 1908, in Berne in 1914, in Rome in 1928, in Brussels in
1948, in Stockholm in 1967 and in Paris in 1971. On the 1st of September, 2009, 164 states were
parties to this Convention.
In principle the automatic grant of copyright at the cross border level allows authors and the cultural
industries who exploit their works to operate globally and to do so on a level playing field. One should
however not forget that well developed and well financed cultural industries and media conglomerates
exist in certain developed countries and that these find it easier than emerging players to take full
advantage of these opportunities. In practice these large corporations based in the developed world
tend therefore to dominate the copyright industries worldwide. Their smaller counterparts in the
developing world find it much harder to benefit from these cross-border opportunities that have been
created by the Berne Convention.
More recent Conventions, such as the 1994 World Trade Organization (WTO) Agreement on Trade-
Related Aspects of Intellectual Property Rights (the TRIPS Agreement) and the 1996 WIPO
Copyright Treaty (WCT), refer expressly to the Berne Convention. The TRIPS Agreement places
copyright in a world trade context and expands the principles of copyright to even more nation, whilst
at the same time updating copyright in the light of events since the last Berne revision in 1971.
Amongst others computer programs and databases are dealt with at international level for the first
time. The WIPO Copyright Treaty takes these efforts further and updates copyright for the internet
digital era. In 1996 a companion treaty to the WCT was also concluded to deal with issues relating to
performers and phonograms in the form of the WIPO Performances and Phonograms Treaty 1996
(WPPT). Activity the continued in the audiovisual area and it took until 2012 before that lead to the
WIPO Beijing Treaty on Audiovisual Performances 2012. Currently the focus has moved away from
these rather horizontal treaties and it has rather shifted to individual issues, many of them located in
the area of exemptions and limitation to copyright. A first treaty that emerged from this evolution was
the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually
Impaired, or Otherwise Print Disabled 2013.
The updating of copyright protection to the digital/internet context created more concerns regarding
access to works and creativity. Whereas in the past access, such as the reading of a book, was free the
digital technological means can restrict access much more easily. This is not necessarily the way
things have to go and there are many other aspects, but it is an easy example of why concerns were
mounting. There were also concerns expressed regarding the space and options left to developing
countries to access these technologies and the information contained in them for the promotion of
economic growth. If copyright protection is justified based on the promotion of economic growth of a
country, increasingly developing countries experienced limitations in promoting domestic economic
growth as the digital tools and information that are needed in the internet age were in the hands of
companies in the developed world. This resulted in the adoption of the WIPO Development Agenda,
mandating a paradigm shift in the approach to intellectual property in general, and copyright in
particular.
Another multilateral copyright convention, which was drafted in Geneva in 1952, is the Universal
Copyright Convention (UCC). This Convention was promoted by the United Nations Educational,
Scientific and Cultural Organization (UNESCO) and was also revised in Paris in 1971. Its purpose was
to establish a multilateral international protection at a level where also some countries outside the
Berne Convention, including the United States of America, could join. However, it has lost its
importance as its member States, practically all, have joined the Berne Convention or the WTO. All
Conventions described above, with the exception of the UCC and the TRIPS Agreement, are
administered by the World Intellectual Property Organization (WIPO) with headquarters in Geneva.
Except for the UCC, all these Conventions will be analyzed in the following modules.

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SAQ 1
Select from the list below the true statements.

1 Copyright protection can only be given to written works

2 Protection for literary and artistic works can only be given for a work which is listed in article 2 of the Berne
Convention
3 The aim of copyright is to protect science, culture and the arts.
4 Ideas and thoughts cannot be protected by copyright
5 The appearance of copyright is linked to the appearance of the printing technique
6 The historical development of copyright shows its close relationship with industrial and technological
development.

Type your answer here

Click here for your answer

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SAQ 1 Ans
1 is False as copyright can be given for such things as images, maps and even multi media works
2 is False because the list in article 2 is not exhaustive: it is there as an illustrative list
3 is True this is the aim of copyright protection
4 is True ideas and thoughts cannot be protected. It is the expression of these ideas and thoughts as works
which are protected.
5 is True as the idea of copyright is linked to the arrival of the printing technique
6. is TRUE since industrialization took place in countries protecting copyright.

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SAQ 2
Which are the most important copyright conventions and agreements? When were they adopted and when was
each of them revised for the last time?

Type your answer here

Click here for your answer

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SAQ 2 Ans

- The Berne Convention for the Protection of Literary and Artistic Works (1886) last revised in 1971 (the Berne
Convention).

- The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (1994). (TRIPS)

- The WIPO Copyright Treaty (1996). (WCT)

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SAQ 3
Is it fair to say that the Berne Convention gave rise to a single international copyright system or are the copyright
and droit d’auteur traditions too different in this respect?

SAQ 3 Ans

It is indeed fair to say that the Berne Convention give rise to a single international copyright system. The droit
d’auteur and copyright traditions come from very different starting point, i.e. The natural right approach that
focuses on the personality right of the author and the property right approach that focuses on the exploitation of
the work respectively, but they both work within the framework of the Berne Convention and they often lead to the
same result in practice.

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SAQ 4
Is there any relationship between copyright protection and the growth of the cultural industries?

Answer to SAQ 4:
Historically the main objective of copyright was to promote the printing and publishing industries. The
privileges were given to establish a printing and publishing industry that could contribute substantially
to the dissemination of knowledge and information. Copyright protection is an important incentive for
investment in these cultural industries. Hence it promotes the economic growth of the cultural
industries.

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3.0 Summary of the Concept of Copyright, Historical
Background and International Framework

Copyright is a bundle of exclusive legal rights concerned with the protection of literary and artistic
works. The aim of copyright is to reward authors for their intellectual effort and at the same time
promote science, culture and the arts. It also encourages the growth of the cultural industries that
facilitate the dissemination of works to the public.
The Berne Convention gives a long but not exhaustive list of things that are considered to be ‘literary
and artistic works’. However any creation of the mind can attract copyright protection as long as it
meets the requirements set out in the Berne Convention in the way in which these requirements have
been implemented by the various states. National copyright laws are either based on the droit d’auteur
tradition and its principles or on the copyright tradition and its principles. In practice they often
achieve the same results though.
For example, new technology or technology-based works are also protected, such as computer
programs, databases and multimedia works.
A point to stress is that Copyright protects ‘works’.
Works represent the expression of thoughts and ideas. Ideas and thoughts as such are not protected.
So, if I conceive the idea of writing a novel about people that meet on an airplane and form a law firm
together, this idea can be freely copied by anyone. It is only when I express my story in words, either
on paper or otherwise, that I get protection for that particular form of expression.

The history of copyright is closely linked to technological developments. The first forms of copyright
protection appeared in the 15th century when the printing technique appeared and the easier
duplication of human writings became possible. The first complete Copyright Act appeared in England
in 1710. Amongst the first countries that followed were Prussia and France.

The first international Convention on copyright is the Berne Convention (1886) which has been
revised and amended on many occasions. In 1994 the TRIPS Agreement was signed within the trade
related context of the WTO. The most recent convention on Copyright is the WIPO Copyright Treaty,
which was signed in 1996.

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Further Reading

A further introduction to copyright can be found at:

http://en.wikipedia.org/wiki/Copyright

A detailed discussion of the Universal Copyright Convention and the way in which it interacts with the
other international copyright instrument can be found at:

http://portal.unesco.org/culture/en/files/32622/11718941731ucc_study_e.pdf/ucc_study_e.pdf

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Case studies on the key distinction between ideas and
expression:
1 Baker v. Selden - 101 U.S. 99 (1879)
In Baker v Selden the US Supreme Court dealt with 2 treatises explaining a particular system of
bookkeeping. The original version contained merely 650 words of explanation on top of blank account
books and forms. Before the court could deal with the question whether the second version infringed
the copyright in the first version the court had to determine what was unprotected idea in the first
version and what was copyright protected expression. Only copying the latter could potentially
constitute copyright infringement.
To put it in the words of the court:
‘[…] we observe that Charles Selden, by his books, explained and described a peculiar system of
bookkeeping, and illustrated his method by means of ruled lines and blank columns, with proper
headings on a page or on successive pages. Now whilst no one has a right to print or publish his book,
or any material part thereof, as a book intended to convey instruction in the art, any person may
practice and use the art itself which he has described and illustrated therein. The use of the art is a
totally different thing from a publication of the book explaining it. The copyright of a book on
bookkeeping cannot secure the exclusive right to make, sell, and use account books prepared upon the
plan set forth in such book. Whether the art might or might not have been patented is a question which
is not before us. It was not patented, and is open and free to the use of the public. And of course, in
using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.

The plausibility of the claim put forward by the complainant in this case arises from a confusion of
ideas produced by the peculiar nature of the art described in the books which have been made the
subject of copyright. In describing the art, the illustrations and diagrams employed happen to
correspond more closely than usual with the actual work performed by the operator who uses the art.
Those illustrations and diagrams consist of ruled lines and headings of accounts, and it is similar ruled
lines and headings of accounts which, in the application of the art, the bookkeeper makes with his pen,
or the stationer with his press, whilst in most other cases the diagrams and illustrations can only be
represented in concrete forms of wood, metal, stone, or some other physical embodiment. But the
principle is the same in all. The description of the art in a book, though entitled to the benefit of
copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is
explanation; the object of the other is use. The former may be secured by copyright. The latter can
only be secured, if it can be secured at all, by letters patent.’
Therefore, a claim to the exclusive property in a peculiar system of bookkeeping cannot, under the law
of copyright, be maintained by the author of a treatise in which that system is exhibited and explained.
Or as the court concluded:
‘The conclusion to which we have come is that blank account books are not the subject of copyright,
and that the mere copyright of Selden's book did not confer upon him the exclusive right to make and
use account books, ruled and arranged as designated by him and described and illustrated in said
book.’
The 650 words of explanation are on the other hand clearly the author’s expression of certain of the
ideas and they are therefore protected by copyright.

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2. Designer Guild Limited v. Russell Williams (Textiles) Limited (Trading As Washington Dc)
[2000] UKHL 58; [2001] 1 All ER 700; [2000] 1 WLR 2416 (23rd November, 2000)

Moving forward more than a century from the Baker v. Selden case, the UK’s House of Lord (now
Supreme Court) dealt with the distinction between idea and expression. This case was concerned with
a design for wallpaper that was described as characterized by an impressionistic style based on a
combination of stripes and scattered flowers and leaves. Before the claim of alleged infringement
could be heard the court had to decide where the border line was between the idea and the expression.
If only the former was copied there could not be infringement. The advantage of this case is that it
strictly focusses on copyright and what is covered by it. Any aspect of patent law, as with the ‘method
of accounting’ in Baker v Selden is absent.

Lord Hoffmann explained the distinction between ideas and expression as follows:
‘It is often said, as Morritt L.J. said in this case, that copyright subsists not in ideas but in the form in
which the ideas are expressed. The distinction between expression and ideas finds a place in the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (O.J. 1994 L. 336 p.
213), to which the United Kingdom is a party (see article 9.2: "Copyright protection shall extend to
expressions and not to ideas…"). Nevertheless, it needs to be handled with care. What does it mean?
As Lord Hailsham of St. Marylebone said in L.B. (Plastics) Ltd v. Swish Products Ltd. [1979] R.P.C.
551, 629, "it all depends on what you mean by 'ideas'."

Plainly there can be no copyright in an idea which is merely in the head, which has not been expressed
in copyrightable form, as a literary, dramatic, musical or artistic work. But the distinction between
ideas and expression cannot mean anything so trivial as that. On the other hand, every element in the
expression of an artistic work (unless it got there by accident or compulsion) is the expression of an
idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers
rather than tadpoles, use one colour and brush technique rather than another, and so on. The
expression of these ideas is protected, both as a cumulative whole and also to the extent to which they
form a "substantial part" of the work. Although the term "substantial part" might suggest a quantitative
test, or at least the ability to identify some discrete part which, on quantitative or qualitative grounds,
can be regarded as substantial, it is clear upon the authorities that neither is the correct test. Ladbroke
(Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 W.L.R. 273 establishes that substantiality
depends upon quality rather than quantity (Lord Reid at p. 276, Lord Evershed at p. 283, Lord Hodson
at p. 288, Lord Pearce at p. 293). And there are numerous authorities which show that the "part" which
is regarded as substantial can be a feature or combination of features of the work, abstracted from it
rather than forming a discrete part. That is what the judge found to have been copied in this case. Or to
take another example, the original elements in the plot of a play or novel may be a substantial part, so
that copyright may be infringed by a work which does not reproduce a single sentence of the original.
If one asks what is being protected in such a case, it is difficult to give any answer except that it is an
idea expressed in the copyright work.

My Lords, if one examines the cases in which the distinction between ideas and the expression of
ideas has been given effect, I think it will be found that they support two quite distinct propositions.
The first is that a copyright work may express certain ideas which are not protected because they have
no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground
that, for example, a literary work which describes a system or invention does not entitle the author to
claim protection for his system or invention as such. The same is true of an inventive concept
expressed in an artistic work. However striking or original it may be, others are (in the absence of

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patent protection) free to express it in works of their own: see Kleeneze Ltd. v. D.R.G. (U.K.) Ltd.
[1984] F.S.R. 399 . The other proposition is that certain ideas expressed by a copyright work may not
be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not
original, or so commonplace as not to form a substantial part of the work. Kenrick & Co. v. Lawrence
& Co. (1890) 25 Q.B.D. 99 is a well-known example. It is on this ground that the mere notion of
combining stripes and flowers would not have amounted to a substantial part of the plaintiff's work. At
that level of abstraction, the idea, though expressed in the design, would not have represented
sufficient of the author's skill and labour as to attract copyright protection.

Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the
less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the
author's skill and labour, tends to lie in the detail with which the basic idea is presented. Copyright law
protects foxes better than hedgehogs. In this case, however, the elements which the judge found to
have been copied went well beyond the banal and I think that the judge was amply justified in
deciding that they formed a substantial part of the originality of the work.’

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