In Civil Case (Tel Aviv) 2519/07 Ratzon-Pikovsky v. Mega Trend College in the Capital Market in a Tax Appeal [Nevo] (January 11, 2012, hereinafter, the Pikovsky case), the Honorable Justice M. Agmon-Cohen examined a claim for copying a preparatory book for the Securities Authority's examination. There, too, a series of similarities were raised, which were examined individually by the court. In the meantime, it was ruled (at p. 42) that the plaintiff's choice to focus on three elements of the offense of using inside information, even though the legal literature speaks of many other elements, is only an idea. It was also found that the way the idea is implemented, which is expressed in the manner in which it is presented to the reader, the style, and the content of the words, is completely different in the comparison between the plaintiff's book and the defendant's book.
A comprehensive analysis and review of the distinction between idea and expression and their application in case law in Israeli and United States courts can be found in the book "Copyright" (2023) by the scholar Tony Greenman, on pp. 72-92. Among other things, Greenman noted (at p. 78) that the distinction between an idea and an expression is important in order to determine which elements of the work are protected by copyright, and which components are not protected by law:
"The distinction between an idea and an expression in any concrete case is what will in fact determine which elements of the work are protected and which are not, and it may decide the fate of a claim for copyright infringement."
He also noted there (at p. 79) that: "Theses are also ideas. Hence, they are also not protected by copyright. This right applies only to the manner in which the thesis is expressed."
- At the basis of the distinction between an idea and the way it is expressed, and hence also in the way it is implemented, are the purposes underlying the recognition of the right of creators. The main purpose is to increase the development and dissemination of new works for the benefit of the general welfare. As is well known, granting exclusive rights to creators over their works provides an incentive for their creation, but at the same time it limits the public's ability to enjoy those works and also limits the possibility of other creators using these works for the purpose of developing new works (see, for example, Civil Appeal 513/89 Interlago A/S v. Exin Lines Bros. A., IsrSC 48(4) 133, 159 [1994], hereinafter: the "Interlego" case).
The tension created when granting copyright protection also surfaces and arises in connection with the additional recognized purposes deriving from the theories of labor and remuneration, and the theory of personality, which deals with the protection of the private interests of the creator (for the essence of these purposes, see, for example, Civil Appeal 1248/15 Fisher Price Inc. v. Doron - Import and Export in a Tax Appeal [Nevo] (August 31, 2017) in paragraph 29 of the judgment of Vice President E. Rubinstein, hereinafter: the "Fischer-Price" case; and Guy Pesach, "The Theoretical Basis for Recognition of Creators ' Rights," Mishpatim 31(2) 5761, 359). Granting an exclusive right to a work rewards the creator for the added value in his work, and allows him to protect the expressions of his personality, and these goals are fair and worthy. However, the resulting restriction on other creators who wish to create new works using existing works impairs their ability to reach their full creative potential, and to receive the proper reward for their talent and skills, and the possibility of developing their personality.
- Defining the concept of "idea" too narrowly to include only the most abstract ideas will lead to a general expression of the idea becoming protected, in a way that excessively limits the possibility of others using it and developing new works. In the field of academic research, the main significance will be a blow to the potential for development of human knowledge. Similarly, defining the concept of an "idea" too broadly so that even a fairly detailed expression of it and the manner in which it is implemented will be considered a mere "idea" will deprive potential creators of an incentive to develop it, in a way that is also liable, in the field of academic research, to harm the development of human knowledge.
- Where will the boundary line pass? After all, the court does not have a scale, or precise scales, that make it possible to point sharply to the correct point of balance, and in fact, such a measurement tool is not available. It seems, however, that the mere awareness of the aforementioned tension and the attempt to deal with it when determining the scope of the copyright may assist in the balancing act and increase the chances of reaching the desired result. This was discussed by the scholar Guy Pesach in his article "The Theoretical Basis for the Recognition of Copyrights " mentioned above, at p. 371:
"Copyright law is forced to deal with the constant tension between the need to recognize copyright as a means of encouraging creation and its dissemination, and the social price it entails. A large part of the rules that make up copyright law - such as the distinction between an idea and an expression, and the uniqueness of the protection that the copyright grants to a certain way of expression only - are rules that seek to resolve the said tension. Their purpose is to find the point of equilibrium between the social cost of copyright and the social contribution of the incentive provided by copyright. It is highly doubtful that such a point of equilibrium can be found, whether empirically or analytically; However, it seems that it is also of great importance to present the existence of the aforementioned tension and to internalize the need to deal with it in the framework of determining the scope of copyright, its content, and its exceptions."