How does substantial similarity of expression in infringement actions look from a linguistic point of view?

This chapter argues that impressions of substantial similarity of expression in literary copyright infringement actions, including in relation to allegations of non-literal copying, can be clarified by investigating features of verbal discourse organisation that give rise to them. Reference to verbal structures might then be made in copyright actions, where helpful, in a manner resembling specialist understanding of musical composition and software design. The value of broadly ‘linguistic’ description, it is proposed, should nevertheless not be overstated, as some kind of definitive expert evidence (which would potentially interfere with and might unduly extend fact-finding efforts already made by the courts). Rather, it is claimed, greater linguistic precision in dealing with perceptions of textual similarity may help in understanding boundaries relied on in judicial opinions between verbal copying, treatment, textual architecture, and ideas, including boundaries based on general concepts such as ‘abstraction’ and ‘generality’.

This chapter is followed in the book by an extended reply, ‘Refining notions of idea and expression through linguistic analysis’, by Graeme B. Dinwoodie, pp.194-206.