By, Shubhank Suman
Idea defines as a “thought or suggestion to a possible course of action”[i] which is an essential first step toward any inventions or literary works. Nothing can or will occur without an idea, so ideas are in one way a vital and important part of the overall equation of innovation. However, it is also believed that ideas are abstract concepts and open to interpretation by different people consequently, an identifiable manifestation of the idea can not be possible under intellectual property law as no exclusive rights will flow. The absence of non-exclusive rights also makes an idea of monetary invaluable.[ii] However, this theory also raised a question, what would happen if your idea is truly unique and is important for your inventions and literary works, whether you will able to protect it from your competitors or not?
CAN IDEAS BE COPYRIGHTED?
Copyright is a right given to the works caused by the ideas and not the ideas itself. Copyright mainly protects an author’s work and prevents others from reproducing such original work. However, it does not prevent others from reaching the same outcome through a separate process. For example, two individuals may make sketches of the same tree independently, each of which is copyrighted, and neither of which violates any other’s copyright as though the idea of an object is the same here but the process to execute the ideas is different. Hence in ideas, there is no copyright. Copyright exists only in the material form to which the ideas are translated. As we discussed earlier Two producers may have the same idea for content. However, the way they communicate their ideas in tangible form through their works is what makes a difference. It is the form through which a particular idea is protected under copyright law and not the idea itself.[iii]
The main reason why only expressions are protected and not the ideas behind it is to protect the free flow of thoughts. If we start protecting ideas too then nobody would be able to freely think about the work which eventually brings innovation and creativity at a halt. This is why the free reproduction of ideas is fundamental to the copyright law framework.
RG Anand v. Deluxe Films.[iv] is one of the important cases in this regard Where the plaintiff had been the author of Hum Hindustani ‘s script. In 1954, The plaintiff and the accused met and discussed the entire story and decided to make a film on the script. However, later the plaintiff found out that the defendant released a film called “New Delhi” without attributing him. The plaintiff, after watching the film, believed that it is based on his script. So he filed a lawsuit for permanent injunction and damages against the defendant. Supreme Court in the case held that “the movie cannot be considered to be an infringement of the script of the play”. “The reason it gave was that though the idea behind both the stories was the same, the manner in which both had been expressed were vastly different from each other Therefore it cannot be held to be copyright infringement.”
Recently, in the case of Mansoob Haider v. Yashraj Films[v], the Bombay High Court again observed that “The residue left behind after filtering out dissimilarities is the idea which is not copyrightable and similarity of ideas does not lead to copyright infringement.”
Not every idea can be creatively articulated. There are some ideas that can only be expressed in a specific way. In that case, copyright of expression would be the copyright of the idea which, in turn, would halt the free flow of ideas. Hence whenever the expression is necessary in order to communicate an idea effectively, courts apply the Merger Doctrine to establish that there is no copyright. The Merger Doctrine is aimed primarily at addressing the convergence of ideas and expressions.[vi]
Morrisey v. Proctor & Gamble Co.[vii] is one of the landmark cases regarding this concept where rules for a contest was tested on the ground of copyright. The court found that the idea of the contest was mixed with the rules. So Copyright of rules would be copyright for the idea of the contest. The rules are thus not a matter of copyright.
CAN IDEAS BE PATENTED?
One of the controversial issues during the granting of patents is a patentability of an idea. The difference between an idea and an invention is very thin because every invention is first an idea that matures later and is patented. On the face of it, there appears to be no significant way of protecting an idea under intellectual property. Copyright covers literary and artistic works only and patent covers new and unique inventions.
In order to protect their unique ideas, in the initial stage of their development, inventors prefer to have a confidentiality agreement. However, no other person or organization other than the one signing the agreement is bound by this Agreement. So what would happen, If a third party, not being a party to the agreement, use the ideas of the inventor? This question requires legal dissection.
A patent is defined as an intellectual property that confers certain legal rights on inventors and their inventions against the unauthorized sale, use, production or sharing for a limited period of time. The basic idea behind this is to acknowledge the efforts of the inventors and give them certain `monopolistic rights regarding their inventions.[viii] However, the question arises, is it necessary to transform an idea into an invention? Cannot we get patents solely on the basis of an idea?
The answer to this question is No. The basic idea behind the patent is to get to the point “where the idea it is concrete enough to be more than what the law would call a mere idea as ideas are valuable because they are a necessary part of the innovation journey, but it is not the idea in and of itself that creates monetary value, rather the valuable proposition inventors provide to those ideas for creating or licensing inventions.”[ix] Every day we come across many people that have ideas, even in family we usually heard many friends and families talk about their ideas, but in reality, only very few people turn their ideas into inventions.
This does not mean that inventors or aspiring inventors should give up at the idea stage, but it does mean more work is necessary to flesh out the idea and to get it across the idea of innovation.
However as per Indian laws on patents. If the idea is specific enough and a strategy is developed to describe it and its functioning, making it a valuable asset to protect, the idea may be protected.
TRADE SECRETS AND IDEA
If your idea is truly unique, What could happen if you don’t own your idea?
- A competitor might easily replicate and take advantage of your idea. After that except competing, you could not do anything about it. We can refer to the example of Friendster which predates Facebook by two years however yet Facebook reportedly has 600 million users whereas Friendster numbers at eight million.[x]
- Your competitors could also claim intellectual property over your idea before you do and, could possibly sue you for using “their” idea. The Facebook founder Mark Zuckerberg has been sued by the Winklevoss brothers for having stolen their ConnectU idea for the Facebook social network site.[xi]
Commercialization of business ideas becomes common now however, if an idea is commercialized without the consent of its owner, it would result in injustice with the owner’s efforts. The originators of an idea often feel cheated when other people market their idea without attributing them.
Since both copyright and patent do not provide protection to ideas, there’s an emergence of new concepts called “trade secrets” to tackle the problem of misappropriation of business ideas. “Trade secret is defined as any valuable information that is not publicly known and of which the owner has taken reasonable steps to maintain secrecy.”[xii] However, you must treat the information as a secret to establish it as trade secret information. For example, Access to your trade secret information should be limited only for those who need to know. Disclosures should only be made under the confidentiality agreement. In short, you must have to take certain steps to keep your ideas secret as in a court of law, you have to prove that your information qualifies as your trade secret when someone misappropriates your trade secret. You have to show that the misappropriated information is valuable because of its confidentiality and also you have to show the steps which you have taken to keep it secret.
The trade secret doctrine protects ideas only for a short time and does not protect ideas that can be readily established through reverse engineering or inventions which can be independently created. If ideas can be produced independently or reverse-engineered, there is no malice involves in the act. If the processing of the idea is not followed by a malicious act, the trade secret information cannot be said misappropriated or used wrongly.[xiii]
CHALLENGES TO PROTECTION OF IDEAS
- Abstract Concept – One of the major challenges in the protection of idea is the absence of identifiable manifestation which makes it abstract and subjective in nature. Hence it is difficult to define ideas in one term and It is also a very difficult task to explain ideas with such clarity and precision that every reader interprets it in the same way. Also most of the time people basically take an important part of the idea and process it in their own way. Therefore, in such cases, it is difficult for the content producer to prove substantial similarity between original ideas and copied ideas.
- Easy To Create Ideas But Not Inventions – The basic idea behind granting a patent is to acknowledge the efforts that an inventor takes to transform ideas into inventions. If we start protecting ideas then it would open the floodgate of patent applications as very fewer efforts is required to think an idea, actual efforts are required when a person try to convert his idea into his inventions.
- Curb Creativity – Restriction over the free flow of thoughts is also an important challenge in protecting ideas. If we start protecting ideas too then nobody would be able to freely think about the work which eventually brings innovation and creativity at a halt.
In light of the above discussion, we can say that concept of protection of idea under Intellectual Property law is not feasible at this stage, it has more disadvantages over advantages. However, the concept of secrecy of business idea is also a creation of the needs of the modern business and its importance of providing protection to the unique business ideas cannot be ignored. Hence the scope of the trade secret doctrine is needed to be tapped in order to cope up with the current realities. Therefore, the need of the hour is to come up with uniform laws that provide a broader scope for registration of ideas along with maintaining its viability in the current scenario.
[i] What is the difference between an ‘idea’ and a ’concept’ ?, (2017), https://designandproduct.co.uk/difference-idea-concept-matter/.
[ii] Gene Quin, Protecting an Idea: Can Ideas Be Patented or Protected?,(Nov 17, 2018), https://www.ipwatchdog.com/2018/11/17/protecting-idea-can-ideas-be-patented/id=103389/.
[iii] Senthil Kumar, Idea-Expression Dichotomy Under Copyright Law,(Oct 19, 2016), https://www.mondaq.com/india/copyright/536650/idea-expression-dichotomy-under-copyright-law.
[iv] RG Anand v. Deluxe Films, AIR 1978 SC 1613.
[v] Mansoob Haider v. Yashraj Films Pvt Ltd & Ors, 219/2014, Bombay High Court.
[vi] Idea-Expression Dichotomy Under Copyright Law, supra note 3.
[vii] Morrisey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967).
[viii] Vijay Pal Dalmia, Patents Law In India – Everything You Must Know,(Dec 18, 2017), https://www.mondaq.com/india/patent/656402/patents-law-in-india–everything-you-must-know.
[ix] Sonal Sodhani, Can Ideas Be Patented?, (May 30, 2019), https://www.mondaq.com/india/patent/810450/can-ideas-be-patented.
[x] Can you protect business ideas?, (Dec 11, 2016), https://learn.marsdd.com/article/business-ideas-as-intellectual-property-ip-can-you-protect-them/.
[xii] Pratibha Ahirwar, What To Choose Between Trade Secrets And Patents,(Feb 21, 2019), https://www.mondaq.com/india/trade-secrets/783558/what-to-choose-between-trade-secrets-and-patents.
[xiii] Marvin Petry, Five Ways To Protect Your Ideas, (1982), https://www.inc.com/magazine/19820101/116.html.