The notion that an idea creator ought to be compensated for the product of his or her mind continues to transcend and develop in the realm of intellectual property. Although many scholars have penned that there is a value to conceptual expression in the disclosure of the idea apart from its future expression, there are others that blur the idea/expression dichotomy and take the position that ideas should be as free as air. Many academics tend to reject the traditional theories of protection, and proscribe alternatives in providing protection to conceptual expression, my article adds to and critiques the discourse and proposes a basis upon which courts can with greater certainty, free “ideas from the shadow of copyright preemption.” The uncertainty surrounding idea protection has widened as a result of recent cases. Safeguarding a system of protection for ideas from an ever increasing threat of federal preemption is, as pointed out in my article, important to a robust exchange of ideas. My article is directed at the discourse that persists, presents the law, examines the problems, and explores the solutions as they pertain to the protection, control, flow and use of conceptual expression.
John R. Kettle III, Conceptual Expression in a Copyright World: Protecting Ideas from the Shadow of Preemption: A Call for Legislative Action, 17 J. Marshall Rev. Intell. Prop. L. 1 (2017)