Television formats are vulnerable to plagiarism, since it is widely believed that they are not protected by existing copyright legislation. Judges often consider formats to just be generic programme “ideas”, as opposed to creative works, and have maintained that ideas cannot be protected by copyright law since this would give rise to boundless “monopolies”.
It is hardly surprising, therefore, that in the absence of any clear legal guidelines, the courts have been reluctant to uphold the claims of copyright infringement as applied to television formats – even in those instances where such infringement would seem to be flagrant and blatant. While the format trade assumes that intellectual property rights exist in formats, this assumption is disputed in law. However, protection for formats will continue to remain an issue, since there is no getting away from the risk of format theft:
- Anyone offering his format must disclose it. Why should anyone pay to acquire rights in a format if one can take over the format without a licence? Why buy something when you can take it for free?
- When the format has been produced and aired it becomes publicly visible. Confidentiality may help during development and production, but confidentiality ends as soon as the format has be seen on television.
What are the rights to a format worth if one cannot protect oneself against unlicensed copying? This question doesn’t just arise whenever there is litigation, but in every licence negotiation. This lack of protection strikes at the heart of the trade in format rights. The commercial strength to exploit formats depends on the capacity to protect formats. Only exclusive rights can create a scarcity value in the market. The licensor undertakes to give the licensee territorial exclusivity. However, this contractual undertaking to give exclusivity is a hollow promise if one is not in a position to block unlicensed copying by competitors in the market. Consequently, this loss of exclusivity reduces the economic value of the licence. If the law fails to provide protection against copying, competitors in the market can help themselves free of charge. Copying can create a competitive advantage because one can save (a) the investment in developing, and (b) the investment in buying a licence and can, therefore, undercut the prices in the market. Thus, the plagiarised product can be offered cheaper than the original. Anyone who plagiarises without a licence enriches himself by the investment the original programme makers have made in innovation.
A claim to ownership of a format must be made using the law of copyright, and in order to justify intellectual property rights to a format, a clear case needs to be made to support the following arguments:
- Formats are the result of the intellectual work of their creators. Therefore, the creator should be in a position to reap what he has sown. Anyone using formats without paying a reasonable licensing fee has wrongfully enriched himself at the expense of the creator.
- Formats require investment. The development, production, and distribution of formats require considerable financial investment. Investors need to have the confidence that they are in a position to make a profit on their investments. Anyone using formats without paying a reasonable licensing fee has wrongfully enriched himself at the cost of the investors.
- Format protection is also a question of legal certainty. Someone who can rely upon his own economical power and can exert economical pressure to protect his formats will also want to know the commercial value of the product with which he is trading. Clearly, if intellectual property rights to formats are not recognised and the legal protection is uncertain, then the commercial value of formats is also uncertain. Companies trading with this intellectual capital must be able to rely on the proper assessment of the value of their formats. There is a clear gap here between book value and market value.