Droits de propriété intellectuelle : libre accès

Abstrait

Creativity Oriented Originality in Non-Protection of Ideas: Inter- Compliance of Originality and Idea-Expression Dichotomy

Ismanjanov A

Originality and Idea-Expression Dichotomy as key concepts of copyrights that define protectable domain can be considered as mutually contradictory phenomena. Non-protection on ideas in Idea-Expression dichotomy is incongruent with the creativity orientation of originality, since the attainment of necessary level of creativity necessitates more of less idea-wise operation. Contradiction has mitigated by lower threshold of originality in line with overall non-monopolistic effect of the copyrights. Different dimensions of operation of these standards may be mitigating the conflict of these concepts, as idea-expression dichotomy focusing on non-monopolization of ideas, while in originality the attention to the minimum level of creativity. The added complexity of the problem reminds on unsuitability of the legal instrument in distinguishing the creativity as a process. While essential goal of originality is in distinguishing the creativity rather than labor or expression, and the product of creativity can be seen as more idea-wise, even if being an expression, as ideas are also expressed in the same form. The obvious contradiction is that ideas being results of creativity are excluded from the protection by idea-expression dichotomy. Some constructive but subtle primacy of originality over the idea-expression dichotomy is still perceptible, that can potentially mitigate the conflict of these concepts.