An Idea can be defined as, "A concept which has not been put in a tangible form so as to be a subject of copyright but which may be a subject of protection by Contract." 1

The manifestation of ideas into words or any material form is called 'expressing' the idea. 2 The objective of the copyright act is to enable the public to access the work of an author who is suitably credited for that work. Copyright protects the way in which the idea is expressed, that is the words and expressions but not the underlying idea. Intellectual Property cannot be owned by a community and thus, is personal property. Such property commands protection in all forms, it becomes the duty of the law-makers to protect the owners of this intellectual property and in turn promote and encourage the people to come up with novel ideas. When an idea of the author is copied by a fellow author without giving due credit to the real author, there is a fear of loss of motivation on the part of the real author.

Copyright protection has not been extended to ideas because of the fear of the creation of monopolistic tendencies in the market. 3 "A monopoly consists of the ownership or control of so large a part of the market-supply or output of a given commodity as to stifle competition, restrict the freedom of commerce, and give the monopolist control over prices." 4 Justice Fazal Ali 5 stated, "where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to a violation of the copyright." The judgment implies that the commonality of ideas can be done away with by applying sufficient measures and analyzing the work in totality. If we understand the concept of monopoly from the same perspective, we would come to the conclusion that protection of ideas per se would not lead to absolute monopoly, for the power to analyze the final work and its competitiveness in the market rests with the courts. Exclusion of ideas from the Act is, in turn, depriving the authors of the credit that they rightfully deserve. Each idea is unique and needs to be protected. Our society would not have developed to the current stage had the people not been encouraged to come up with new and inventive thoughts. Growth of any particular society is dependent upon a different approach and a different set of ideas, circulation of the same ideas leads to stunted growth. 6 Various doctrines have been suggested for determining the originality of the works, the rejection of the 'sweat and brow test' 7 and the final acceptance of 'skill and judgment test' 8 bears the testimony to the fact that the first-hand negation of the plea to protect the ideas shows the non-dynamic nature of the intellectual property law. Moreover, it strengthens the argument that the idea merits protection.

The 'Average Consumer Test' Alternative

The copyright Act aims at benefitting the masses by expanding the scope of information available for its effective use. In the current scenario, anybody and everybody would try to claim ownership over an existing idea. The fair use doctrine 9 if extended to this set of works, the ideas would be able to enter the purview of protection. In the R.C. Deluxe 10 case, one of the tests evolved was that of 'Average Consumer Test', it was claimed as one of the surest and safest tests to determine "whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original." This test compares the idea or the impression created in the mind of an ordinary consumer after reading or viewing two similar works. For such an analysis, the idea has to have an expressed form. But, what has been missed out is that a person would perceive two sets of works as same only when the idea behind those works is similar or the same. Hence, the protection of the expression would not suffice the purpose. The essence of any work is the idea underlying the expression.

Patent v. Copyright

Many jurists have raised a concern while dealing with the protection of the ideas, saying that the novel and unique ideas, having industrial application are already protected under patent law and making a provision regarding the same would lead to redundancy in the law. The patent laws have been created to protect the novel ideas, and something created from an existing general idea has been kept out of the purview of the patent laws. 11 Some ideas though non-obvious in nature need to be guarded. There are certain ideas that need to be based on a pre-existing idea 12, such ordinary works can't be patented but extending copyright to such works is a viable option considering their commercial importance.

Author: Amisha Agarwal, 3rd Year Law Student in Hidayatullah National Law University, in case of any queries please contact/write back to us at


1 Idea, Ballentine's Law Dictionary, (3rd ed.1969).

2 Anil Gupta v. Kunal Dasgupta, AIR (2002) Delhi 379.

3 Baker v. Salden, 101 U.S 99 (1880).

4 State v. Atlantic Ice & Coal Co., 210 N.C. 742, 188 S.E. 412, 416.

5 R.G Anand v. M/S. Delux Films & Ors, (1977) 2 SCC 634.

6 Abhinav Chandrachud, The Idea- Expression Fallacy: Effacing the Traditional and Doctrinaire limits, (2005) 4 Law Rev. GLC 1.

7 Feist Publication Inc v Rural Telephone Service Co. Inc., 499 U.S. 340 (1991).

8 CCH Canadian Ltd. v Law Society of Upper Canada [2004] 1 SCR 339, Eastern Book Co. v D.B. Modak, 2008, 1 SCC 2.

9 Supra note 16.

10 Supra note 24.

11 The Patents Act, Section 3(d), (1970).

12 Kenrick v. Lawrence, (1890) 25 QBD 99.

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