Merger doctrine and factual works: expression of fact or infringement?

Document Type : Research Article

Authors

1 MSc, Department of Private Law, Faculty of Law, College of Farabi , University of Tehran, Qom, Iran

2 Professor, Department of Law and Islamic Jurisprudence, Research Institute for Islamic Culture and Thought, Tehran, Iran; Associate Member of Faculty of Law, College of Farabi, University of Tehran, Qom, Iran

Abstract

The key element in identifying infringements of literary and artistic works is to examine the extent of similarities between the works in question. But in the case of factual works that consist mainly of unprotected facts, the courts dealing with infringement cases of such works suggest that, given that the ways in which a factual idea can be expressed are limited, any subsequent expression of that idea may seem substantially similar to the words used by the first author to express the idea. In such cases, a special doctrine enters the analysis - the merger of idea with expression. According to this doctrine, expression can not be protected when the idea can only be expressed in a certain way. The doctrine has a special connection to factual works; because there are limited ways to express facts that are not per se protected. This raises the fundamental question that considering this particular nature and the prominent role of merger doctrine in excluding similarities, in what circumstances does the infringement of factual works take place? Due to the unclear status of Iranian law in this regard, the present study seeks to answer this question by using a descriptive-analytical method in examining the performance of judges in infringement cases of various instances of factual works and concludes that these works accept a different standard for infringement, as only a very close similarity, verging on the identical will constitute an infringement.

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Private Law
Volume 18, Issue 2
Autumn & Winter
October 2021
Pages 277-296

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