The report reveals that TV formats are being protected by a suite of laws, from the traditional starting point — copyright — through to the less obvious suspects of unfair competition, passing off, trade mark and breach of confidence.
“Those in the industry who are sceptical about the protection of format rights may be surprised by some of the findings,” says Priya Nagpal, barrister and senior associate at the international media firm Olswang LLP, who co-authored the report in association with Dr Sukhpreet Singh. “But the report confirms that format creators have become more sophisticated at restraining copycats by looking beyond copyright and using instead a variety of legal rights to protect their successful TV programmes.”
Nagpal surveyed 14 territories — including Australia, Belgium, Brazil, Canada, India, the UK and the US — and examined more than 40 judgments in the course of compiling Protecting Format Rights. The good news is that, in most of these cases, format creators succeeded in enforcing their rights through a variety of means. Less positively, the report also revealed that legal inconsistencies can result in a format being protected in one territory but not in another. However, while format imitators may get away with copying in one jurisdiction, they will struggle to distribute their rip-offs in others, thus reducing the value of copycat shows on the global market.
Presenting Protecting Format Rights to the international press at MIPCOM, FRAPA board member David Lyle, CEO of National Geographic Channels, hailed it as “a handy guide to how format creators can build in protection at all stages of development, particularly in the early days of pitching concepts, when your creation is at its most vulnerable”.
Among the practical steps that format creators can take to protect their rights are documenting their shows in ‘bibles’ and ensuring that pitches or proposals are covered by confidentiality agreements. Other golden rules include a zero-tolerance policy towards rip-off shows, since an unchallenged imitation in one market will inevitably spawn other copies in other markets.
“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,” Lyle said, observing that pirated formats would not exist if it were not for unscrupulous broadcasters.
Nagpal’s message to any broadcaster tempted to rip off rather than pay up is measured but clear: “Although sometimes inconsistent, there is protection for formats in a variety of forms in numerous countries around the world.”