FRAPA Report 2011
Hit international TV formats such as ‘Big Brother’ and ‘Who Wants to be a Millionaire?’ are being protected by the laws of copyright, unfair competition, passing off and breach of confidence, according to the latest FRAPA report, launched today at a MIPCOM press conference in Cannes hosted by David Lyle, CEO of National Geographic Channels, and FRAPA chairman, Ute Biernat, CEO of GRUNDY Light Entertainment.
The FRAPA Report 2011: Protecting Format Rights, prepared by international media and telecommunications law firm Olswang LLP (in association with Dr. Sukhpreet Singh) and supported by the State of North Rhine-Westphalia, looks at 14 TV territories including: Australia, Belgium, Brazil, Canada, India, the UK and the US. Its aim is to provide a practical, user-friendly guide to the legal options available to TV format creators, maximising their chances of winning legal proceedings should their programmes become the subject of a dispute.
The report also examined over 40 reported judgments from around the world, covering copyright, unfair competition, breach of confidence and trade mark disputes. In most of these cases, format creators successfully enforced their rights by relying on a suite of different laws that protected their programmes as valuable business assets.
Lyle said: “A hit international TV programme may be a licence to print money, but a valuable format is also a vulnerable one and needs all the protection on offer. We believe this latest FRAPA report will help the industry to protect the kernel of its business — the spark of creativity that lies at the heart of all great shows.”
Evolution among format creators
Olswang found that the legal inconsistencies between territories and jurisdictions often resulted in a format being protected in one country but not in another. While format imitators may be free to copy in one jurisdiction, they will struggle to distribute their copycat formats in others, thus significantly reducing the value of an imitation on the global market.
FRAPA Report author and Senior Associate at Olswang, Priya Nagpal said: “Olswang has been working with some of Europe’s most formidable TV brands and programme creators for decades, so we inherently understand the creative and business challenges faced by the industry. We’ve seen an evolution among format creators – they have become more sophisticated at restraining copycats by looking beyond copyright and instead using a variety of legal rights to protect their successful TV programmes. The report illustrates that this is a winning strategy and one that will continue to protect the value of these formats.”
The report positively revealed that format creators are enjoying increasing success in cases of unfair competition, unfair business practices and breach of confidence. Big Brother creator Endemol, has had some success in the Netherlands and Brazil with its hit show, and there have been several successful copyright claims in Belgium, Canada and Spain. However, copyright infringement claims continue to be challenging, particularly in Germany, where a Supreme Court decision has created an unsympathetic environment for format disputes.