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I. COPYRIGHT: CASES AND MATERIALS
- Where does “idea” stop and “expression” start?
Plix Products Ltd v. Frank M. Winstone (Merchants) Ltd [1986] F.S.R. 63
(New Zealand: High Court), affirmed [1986] F.S.R. 608 (New Zealand: Court
of Appeal)
[Employees of the plaintiff designed standardized plastic packs to contain
kiwifruit. The specifications for this packaging were adopted by the kiwifruit
marketing board. All kiwifruit to be marketed by the board had to be packed
according to these specifications. The defendant orally instructed a designer to
create kiwifruit packs, following the board’s specifications and his own
measurements of kiwifruit. The designer never saw the plaintiff’s packs. The
plaintiff nevertheless successfully sued for copyright infringement.]
MR JUSTICE PRITCHARD:
A designer who knows his subject and who is given the idea, or general concept, of a copyright
product (and no more) may well be able, by drawing on his own skill and independent
knowledge, to design a product which may, or may not, reproduce the form of copyright work.
I would regard this as independent work – not copying. ...
This proposition touches on the question of the idea/expression dichotomy, which is probably the
most difficult concept in the law of copyright. ...
There are in fact two kinds of “ideas” involved in the making of any work which is susceptible
of being the subject of copyright. In the first place, there is the general idea or basic concept of
the work. This idea is formed (or implanted) in the mind of the author. He sets out to write a
poem or a novel about unrequited love or to draw a dog listening to a gramophone or to make a
kiwifruit pocket pack – or whatever project he has in mind. While this “idea” remains as a
thought in the author’s mind it is, of course, not copyright. ... [T]he mere act of reducing a
general or basic concept of this sort to a tangible form does not result in a monopoly in the
concept...
Then there is a second phase – a second kind of “idea”. The author of the work will scarcely be
able to transform the basic concept into a concrete form – i.e., “express” the idea – without
furnishing it with details of form and shape. The novelist will think of characters, dialogue,
details of plot and so forth. The artist will think of a certain tilt to the dog’s head, to the effect of
perspective, colour, light and shade. The pocket pack maker will likewise design the shapes,
forms, patterns whereby he believes he can most effectively express the basic idea of pocket
packs. Each author will draw on his skill, his knowledge of the subject, the results of his own
researches, his own imagination in forming his idea of how he will express the basic concept.
All these modes of expression have their genesis in the author’s mind – these too are “ideas”.
When these ideas (which are essentially constructive in character) are reduced to concrete form,
the forms they take are where the copyright resides. ...
The difficulty, of course, is to determine just where the general concept ends and the exercise of
expressing the concept begins. It is ... an “ill-defined boundary”. There can be no general
formula by which to establish the line between the general idea and the author’s expression of
the idea. The basic idea (or concept) is not necessarily simple – it may be complex. It may be
something innovative; or it may be commonplace, utilitarian or banal. The way the author treats
the subject, the forms he uses to express the basic concept, may range from the crude and
simplistic to the ornate, complicated – and involving the collation and application of a great
