What Does Copyright Protect?

This is an important question when you’re drawing from someone else’s work to create your own material. What is permissible, and what would be considered infringement?

Copyright only protects creative expression. It does not protect facts or ideas, only the way those facts and ideas are assembled and presented to the world. The point of copyright is to encourage creativity, not to restrict the flow of information. When there’s a conflict between the protection of creativity and the availability of an idea, the idea usually wins.

Let’s take an example from an old court case. In this case, someone wrote a book about a new accounting system, including charts readers could use to implement the system. The person then became quite upset to learn that people were copying the charts and selling them to consumers that didn’t want to buy the whole book (and more to the point, were not paying him any royalties). He sued for copyright infringement.

He lost. The court ruled that the system was a formula, which could not be protected by copyright. The words he used in the book to describe the system were protected, but the man could not protect the system itself.

But what about the charts? The court ruled that, since the accounting system could not be protected, and the charts were necessary in order to use the accounting system, the charts were also not protected under copyright. This created a new wrinkle in copyright law, which is now called “the merger doctrine.” Essentially, the merger doctrine states that when there are a limited number of ways to express an idea, none of those ways can be protected by copyright.

Are you confused yet? Let’s use another example. Say that you’re creating a recipe. Recipe instructions are not protectable, because there are only so many ways that you can say “add 2 eggs” or “beat the butter and sugar together.” However, you can add creative flourishes, which could be protected under copyright law – for example, “Try not to eat the whole cake at once – but don’t feel bad if you do.”

One of the best ways to protect yourself from copyright infringement is to know what you can and cannot use without permission. If you would like to learn more about what is permissible in copyright law, you are welcome to email me at kaway@kawaylaw.com.

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