The Failure of the Idea Expression Dichotomy: Why Intellectual Property Law Must Protect Originators, Not Just Expressions

The Failure of the Idea Expression Dichotomy: Why Intellectual Property Law Must Protect Originators, Not Just Expressions

 Part I: The Failure of the Idea-Expression Dichotomy

The present architecture of global intellectual property law is built upon a distinction that is increasingly difficult to defend intellectually, morally, and economically: the idea-expression dichotomy. Under prevailing copyright doctrine, ideas are treated as part of the public domain, while only the specific form of expression is protected. This means that the person who first conceives an original philosophical insight, literary premise, scientific framework, social model, technological vision, or artistic concept may receive no legal protection unless they are also the one who develops the final expressive form. By contrast, individuals or corporations with greater resources, institutional backing, legal teams, production capabilities, or market access can take the underlying idea, alter its expression, and capture most or all of the value generated from it. (WIPO)

This principle is deeply embedded in international copyright law. The Berne Convention, the WIPO Copyright Treaty, and the laws of most countries state that copyright protects expressions, not ideas, methods, systems, or concepts. In effect, the law assumes that ideas should remain freely available to everyone because allowing ownership over ideas would suppress future creativity and hinder the public domain. (WIPO)

Yet this assumption rests on an incomplete understanding of how creativity actually functions.

In nearly every field of human achievement, the idea is the most valuable component. Expression is often downstream from conception. Thousands of writers can produce compelling prose, but only a handful may originate a truly transformative philosophical insight, fictional premise, scientific theory, or political model. Thousands of engineers can refine a design, but far fewer can first imagine the foundational invention. The legal system protects the person who writes the best version of an idea, not necessarily the person who had the idea first.

This creates a structural imbalance in favor of power. Wealthy institutions, publishers, studios, technology companies, and better-positioned creators are often able to identify, absorb, adapt, and monetize the ideas of less powerful originators. The original thinker may be left with neither ownership nor recognition, despite being the person who generated the foundational insight. In such cases, intellectual property law ceases to protect creativity itself and instead protects only the capacity to execute, publish, distribute, litigate, and commercialize. That is not a neutral system. It is a system tilted toward those who already possess capital, infrastructure, and influence.

The injustice becomes even clearer in literature and philosophy. Suppose an unknown thinker develops a new moral framework, an original theory of consciousness, a revolutionary fictional premise, or a novel political ideology. If another writer with greater technical skill rewrites the concept in a more polished form, the law typically rewards the second person. The originator of the thought may be forgotten entirely. This means that the law values style over substance, eloquence over conception, and refinement over origination.

Recent scholarship has begun to acknowledge that the idea-expression distinction is increasingly unstable and inadequate, particularly in the age of artificial intelligence and digital replication. Scholars have argued that the doctrine cannot adequately distinguish between style, form, conceptual content, and creative essence. Some have even argued that copyright law's traditional distinctions are no longer sufficient to capture the real sources of human creativity. (Duke Law Scholarship Repository)

The rise of generative AI has made this flaw even more visible. AI systems can imitate style, prose, voice, and structure with increasing precision. They can produce new expressions based on preexisting conceptual patterns. As a result, it is becoming easier than ever to replicate someone's intellectual contribution without reproducing their exact words. A machine can take the central idea, alter the expression, and produce something legally distinct but conceptually derivative. This exposes the weakness of a legal system that protects wording but not conceptual origination. (The Verge)

Patent law does not fully solve this problem either. While patents do protect certain inventions and methods, they generally exclude abstract ideas, laws of nature, mathematical concepts, and broad conceptual frameworks. Courts, especially after the 2014 Alice decision in the United States, have repeatedly narrowed patent eligibility for inventions considered too abstract. This has made it difficult for originators of conceptual innovations, especially in software, business models, and digital systems, to secure meaningful protection. (IPWatchdog)

The consequence is a gap at the center of modern intellectual property law. Copyright does not protect ideas. Patent law often refuses to protect abstract ideas. Trade secret law only protects ideas if they are kept secret. As soon as an idea is shared publicly, the originator may lose any ability to control or benefit from it. Thus, the person who contributes the most essential part of the creative act, the conception itself, often receives the least protection.

A more just framework would recognize that creativity is not only the act of expression but also the act of origination. There is a profound difference between inventing a thought and merely refining it. The law should acknowledge this difference.

One possible model would be the creation of a new category of intellectual rights centered around conceptual origination. Under such a system, individuals could register major original ideas, theories, frameworks, fictional premises, technological visions, social models, or philosophical concepts in a timestamped and publicly verifiable registry. The registry would not prevent others from building upon the idea, but it would require recognition, attribution, and possibly compensation when the original concept becomes commercially valuable.

This would function similarly to moral rights in copyright law, which already protect attribution and integrity in many countries. However, it would go further by recognizing the first originator of a conceptual framework even if later expressions differ substantially. Such a system could ensure that society continues to innovate while also preserving fairness for those who generate the original intellectual spark.

The current system assumes that ideas are abundant and expression is scarce. In reality, the opposite is often true. Expression is abundant. Technology has made writing, design, coding, and production easier than ever. What remains scarce are genuinely original ideas. Intellectual property law should evolve to reflect that reality. (WIPO)

Part II: Toward a Legal Order That Places the Originator First

If intellectual property law is to remain intellectually honest, it must stop treating the originator of an idea as secondary to the person who merely refined, marketed, or expressed it better. The originator is the primary creator. Everyone else, however talented, is operating downstream from that first intellectual act.

The first conception of a major idea is often the rarest and most valuable part of the entire process. A person who originates a theory, fictional premise, invention, philosophy, governance model, scientific framework, or artistic vision has already done the hardest work. They have crossed the most difficult barrier: bringing something genuinely new into existence.

Once that idea exists, countless others can build on it.

This is the central flaw in current intellectual property law. It gives overwhelming protection to those with resources, expressive skill, legal power, corporate infrastructure, production capabilities, or technological reach, while the person who first conceived the idea may receive nothing at all. The law often treats the original thinker as expendable and the later executor as indispensable. In reality, the reverse is often true.

A future intellectual property system should therefore be built on a simple principle:

the originator of an idea should possess the strongest and most enduring rights over it

This would require a new legal doctrine: Foundational Intellectual Rights.

Under such a system, the first person to document and verify the existence of an original idea would be recognized as its foundational owner. This ownership would not merely be symbolic. It would create real economic, legal, and attribution rights that would remain attached to the idea regardless of who later develops or commercializes it.

Foundational Intellectual Rights could include the following:

Exclusive Origination Rights

The original creator of an idea would have the exclusive right to authorize major commercial uses of that idea for a defined period. Others could still build upon it, but only with the consent of the originator or through a licensing system.

Permanent Attribution Rights

No matter how many later versions, adaptations, expansions, or refinements emerge, the original thinker would always remain legally recognized as the foundational creator. This attribution could never be removed, sold away, or erased.

Royalty Rights Across Derivative Uses

If another person, company, or institution develops the idea further and profits from it, a percentage of that value should automatically flow back to the original conceptual author. This principle should apply even if the final expression differs substantially from the original. If the foundational idea would not have existed without the originator, then the originator deserves a share of all meaningful downstream value.

Priority Over Executors

In disputes between an originator and a later commercializer, the legal system should favor the originator unless the later party can prove that the final product is substantially independent. The burden should not rest entirely on the first thinker to defend themselves against stronger institutions.

Transferable but Non-Erasable Rights

Originators should be allowed to sell or license their rights if they choose, but they should never lose authorship status. Even if a company acquires full commercial control over an idea, the original creator's identity and contribution should remain permanently attached to it.

Longer Protection Periods for Foundational Ideas

Because ideas often take years or decades to mature into successful products, Foundational Intellectual Rights should last longer than patents. A period of 25 to 50 years may be more appropriate for major concepts, especially in literature, philosophy, science, governance, and technology.

Such a system would not stop innovation. It would simply make innovation more ethical.

Critics would argue that giving stronger rights to ideas could create monopolies over thought. But this objection is exaggerated. Society already accepts monopolies over inventions, songs, books, logos, and pharmaceutical formulas. The real question is not whether society should protect intellectual creation. It is which part of intellectual creation deserves the strongest protection.

The answer should be the original idea.

Without the originator, there is nothing to refine, market, improve, publish, or commercialize. A polished derivative is still derivative. A more sophisticated version of an idea is still dependent upon the existence of the original thought.

The current system disproportionately rewards the last visible contributor rather than the first invisible one. It often treats the person who discovers the mountain as less important than the person who builds a hotel on top of it.

That hierarchy is backwards.

The originator should not merely be acknowledged in a footnote while others capture the wealth, prestige, and legacy. The originator should sit at the top of the legal hierarchy of intellectual ownership.

The future of intellectual property law should therefore not be built around the question:

who expressed it best?

It should begin with the more fundamental question:

who thought of it first?

Because in nearly every major human achievement, the first idea is the seed from which everything else grows.

Part III: Historical Cases of Conceptual Originators Being Erased

History is filled with examples of people who conceived foundational ideas but lost recognition, wealth, or legacy because someone else had more resources, influence, institutional power, or expressive ability. These cases reveal that the current intellectual property system does not always reward the person who first sees the truth, imagines the breakthrough, or conceives the underlying architecture. Often, it rewards the person who commercializes, publicizes, or refines it.

Nikola Tesla and Thomas Edison

Perhaps the most famous example is Nikola Tesla and Thomas Edison.

Tesla was responsible for major breakthroughs in alternating current systems, induction motors, wireless energy transmission, radio concepts, and long-distance electrical distribution. Edison, by contrast, was a far stronger businessman, marketer, and industrial organizer. While Tesla conceived many of the most transformative ideas in electrical engineering, Edison built the commercial machinery that allowed him to dominate public memory.

Tesla died poor, isolated, and underrecognized, while Edison became one of the most celebrated inventors in modern history. The imbalance was not simply a matter of who had the better ideas. It was a matter of who had the stronger institutions, factories, lawyers, investors, and public relations systems behind him. Tesla demonstrates how the original conceptual architect can lose to the better-financed executor. (Medium)

Rosalind Franklin and the Structure of DNA

Rosalind Franklin played a central role in discovering the double-helix structure of DNA. Her X-ray diffraction image, famously known as Photo 51, provided crucial evidence that allowed James Watson and Francis Crick to develop their model of DNA.

However, Franklin did not receive equal recognition during her lifetime. Watson and Crick became the public faces of the discovery, won the Nobel Prize, and entered history as the principal discoverers of DNA structure. Franklin's contribution was recognized much later, after her death.

This case reveals another flaw in the system: the person who generates the crucial insight or foundational evidence can be eclipsed by those who are better positioned to package, narrate, and publish the final expression of the idea. Franklin's case is not merely about sexism or institutional bias, though both mattered. It is also about how systems of credit often privilege those who control the final story rather than those who supplied the indispensable intellectual spark.

Philo Farnsworth and Television

Philo Farnsworth conceived the first fully electronic television system while still very young. He developed the essential architecture that allowed moving images to be transmitted electronically. Yet powerful corporations such as RCA, led by figures like David Sarnoff, attempted to appropriate and dominate the technology.

Farnsworth spent years in legal battles defending his ideas against better-funded institutions. Although he eventually won important patent disputes, he did not gain the wealth, fame, or enduring recognition that larger corporate actors enjoyed. Television became one of the most transformative technologies in history, yet the person who first imagined and built its conceptual foundation is still far less known than the companies that commercialized it. (The Linda Hall Library)

Nikolaus Copernicus and Later Scientific Prestige

Nicolaus Copernicus was the first major thinker to systematically argue that the Earth revolved around the Sun rather than the reverse. This was one of the most important conceptual revolutions in human history. However, later figures such as Galileo Galilei and Johannes Kepler often became more famous in public memory because they refined, defended, expanded, and mathematically strengthened the heliocentric model.

Copernicus conceived the intellectual framework. Others had more advanced tools, more evidence, better communication, or more dramatic personal stories. The history of science often remembers the person who wins the public battle, not necessarily the person who first had the idea.

This is one of the deepest flaws in current systems of intellectual recognition. They tend to reward the final visible layer of innovation rather than the hidden first layer beneath it. Yet without the first layer, nothing else exists.

These examples demonstrate a common pattern:

the original thinker imagines the possibility

another person or institution arrives later with greater resources

the later actor refines, markets, expresses, or commercializes the concept

history often gives the later actor the greater reward

The law, economics, and cultural memory of civilization are therefore often biased toward execution over origination.

A more just system would not deny later contributors their role. It would simply ensure that the first mind to generate the foundational idea is never erased.

Part IV: In the Age of Artificial Intelligence, Originality Becomes the Last Scarce Human Resource

The rise of artificial intelligence changes the entire debate around intellectual property because it radically reduces the value of expression while increasing the value of originality.

For most of history, expression required years of training, technical skill, education, access, and labor. To write a book, paint an image, compose music, design a product, or produce a film required mastery. The barrier between imagination and execution was enormous.

Artificial intelligence is collapsing that barrier.

Today, even a child with a laptop and a prompt can generate illustrations, songs, articles, logos, videos, code, business plans, and entire fictional worlds within minutes. Expression is no longer rare. It is becoming abundant, cheap, and infinitely reproducible.

What remains rare is the original idea.

The future will belong less to those who can merely execute and more to those who can conceive what has never existed before. In an age where machines can produce endless variations of style, language, imagery, and structure, the true mark of human value becomes the ability to generate the first spark, the unusual thought, the hidden pattern, the unexpected connection, or the profound truth that no machine would have arrived at on its own.

This means that originality is becoming the last scarce human resource.

The modern intellectual property system is therefore becoming even more outdated. It was built for a world where expression was difficult and ideas were easy to reproduce. AI reverses this equation. Expression can now be automated. Style can be imitated. Language can be generated instantly. Entire books can be written in hours. Songs can be composed in seconds. Visual art can be produced endlessly.

As this happens, the difference between the originator and the imitator becomes more important than ever.

A future creator may no longer need to know how to paint, code, compose, or even write exceptionally well. They may only need to know what to say, what to imagine, what to ask for, and what has not yet been thought of. The technical act of execution is becoming secondary to the conceptual act of origination.

This is why the law must evolve. If the legal system continues to protect only expression, then it will increasingly reward those who are best at using machines rather than those who are best at producing original thought.

The danger is not merely economic. It is cultural and civilizational.

If society stops rewarding originality and instead rewards only rapid execution, imitation, remixing, optimization, and repackaging, then fewer people will devote themselves to the difficult work of deep thinking. Why spend years developing a new philosophy, scientific model, fictional universe, governance system, or invention if others can instantly take the idea, feed it into machines, and flood the market with variations before the originator can even act?

The result would be a society increasingly full of outputs but increasingly empty of truth.

Artificial intelligence can already generate millions of sentences, images, melodies, and designs. But it still depends heavily on existing human knowledge, existing patterns, existing styles, and existing works. It is strongest when it is extending what already exists. It is weaker when it comes to generating fundamentally new paradigms, deep intentionality, lived experience, emotional depth, or genuine civilizational breakthroughs. Even experts who believe AI can be creative still recognize that it often functions more as a collaborator, amplifier, or recombination engine than as a true originator of unprecedented thought. (ScienceDaily)

This is why originality becomes the last remaining proof of human uniqueness.

When anyone can generate expression, the person who matters most is no longer the person who can produce the most words, images, or outputs. It is the person who can produce the most original insight.

The age of AI therefore makes one truth impossible to ignore:

expression is becoming infinite

originality remains rare

And whatever remains rare will become the most valuable thing in the world. (Storique)

End of Paper

Part I Citations

World Intellectual Property Organization (WIPO), Copyright Basics
https://www.wipo.int/en/web/copyright

World Intellectual Property Organization (WIPO), Summary of the Berne Convention
https://www.wipo.int/en/web/treaties/ip/berne/summary_berne

World Intellectual Property Organization (WIPO), Basic Notions of Copyright and Related Rights
https://www.wipo.int/export/sites/www/copyright/en/docs/basic_notions.pdf

Duke Law Scholarship Repository, Scholarship on the Idea-Expression Dichotomy and Modern Copyright Issues
https://scholarship.law.duke.edu/faculty_scholarship/4522/

The Verge, U.S. Copyright Office Guidance on AI Prompting and Copyright
https://www.theverge.com/news/602096/copyright-office-says-ai-prompting-doesnt-deserve-copyright-protection

IPWatchdog, Discussion of the Alice Doctrine and Abstract Ideas in Patent Law
https://ipwatchdog.com/2026/01/27/supreme-court-take-up-usaa-case-bring-clarity-esoteric-abstract-ideas-doctrine-alice/

Part II Citations

World Intellectual Property Organization (WIPO), Understanding Copyright and Related Rights
https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf

PubMed Central, Research on Moral Rights and Attribution in Intellectual Property Law
https://pmc.ncbi.nlm.nih.gov/articles/PMC12988793/

Duke Law Scholarship Repository, Research on the Limits of the Idea-Expression Distinction
https://scholarship.law.duke.edu/faculty_scholarship/4522/

European Parliament, Protecting Copyrighted Work and the EU Creative Sector in the Age of AI
https://www.europarl.europa.eu/news/hr/press-room/20260306IPR37511/protecting-copyrighted-work-and-the-eu-s-creative-sector-in-the-age-of-ai

Part III Citations

Scott Vern, “Five High-Tech Genius Inventors Who Were Swindled”
https://scottvern.medium.com/five-high-tech-genius-inventors-who-were-swindled-42161bc49d1b

Linda Hall Library, Scientist of the Day: Philo Farnsworth
https://www.lindahall.org/about/news/scientist-of-the-day/philo-farnsworth/

Encyclopaedia Britannica, Rosalind Franklin
https://www.britannica.com/biography/Rosalind-Franklin

Encyclopaedia Britannica, Nikola Tesla
https://www.britannica.com/biography/Nikola-Tesla

Encyclopaedia Britannica, Thomas Edison
https://www.britannica.com/biography/Thomas-Edison

Encyclopaedia Britannica, Nicolaus Copernicus
https://www.britannica.com/biography/Nicolaus-Copernicus

Encyclopaedia Britannica, James Watson
https://www.britannica.com/biography/James-Watson-American-geneticist

Encyclopaedia Britannica, Francis Crick
https://www.britannica.com/biography/Francis-Crick

ScienceDaily, “Scientists Discover AI Can Make Humans More Creative”
https://www.sciencedaily.com/releases/2026/03/260315004355.htm

ScienceDaily, “Researchers Tested AI Against 100,000 Humans on Creativity”
https://www.sciencedaily.com/releases/2026/01/260125083356.htm

The Guardian, “Soon Publishers Won’t Stand a Chance: Literary World in Struggle to Detect AI-Written Books”
https://www.theguardian.com/technology/2026/mar/29/ai-written-books-novel-shy-girl-publishers

 Part 4.  Citations

Vogue, “The Anti-AI Slop Playbook”
https://www.vogue.com/article/the-anti-ai-slop-playbook

Live Science, “Will AI Ever Be More Creative Than Humans?”
https://www.livescience.com/technology/artificial-intelligence/will-ai-ever-be-more-creative-than-humans

Science Advances, “Generative AI Enhances Individual Creativity but Reduces Collective Diversity of Novel Content”
https://www.science.org/doi/10.1126/sciadv.adn5290

Nature Scientific Reports, “Best Humans Still Outperform Artificial Intelligence in a Divergent Thinking Task”
https://www.nature.com/articles/s41598-023-40858-3

PubMed Central, “The Paradox of Creativity in Generative AI: High Performance, Low Originality”
https://pmc.ncbi.nlm.nih.gov/articles/PMC12369561/

TechXplore, “Human Creativity Still Resists Automation: Artists Rank Higher Than AI”
https://techxplore.com/news/2026-03-human-creativity-resists-automation-artists.html

Cloaking Inequity, “Will AI Kill Originality and Creativity?”
https://cloakinginequity.com/2026/01/08/will-ai-kill-originality-and-creativity/

arXiv, “Human-AI Synergy Supports Collective Creative Search”
https://arxiv.org/abs/2602.10001

arXiv, “Extended Creativity: A Conceptual Framework for Understanding Human-AI Creative Relations”
https://arxiv.org/abs/2506.10249