Master of Arts Thesis
Euroculture
Rijksuniversiteit Groningen (Home University)
Université de Strasbourg (Host University)
August 2017
Comparative Study on Copyright Protection of TV Format: the
European Union, the United States of America and China
MA Programme Euroculture Declaration
I, Yun Ling hereby declare that this thesis, entitled “Comparative Study on Copyright Protection of TV Format: the European Union, the United States of America and China”, submitted as partial requirement for the MA Programme Euroculture, is my own original work and expressed in my own words. Any use made within this text of works of other authors in any form (e.g. ideas, figures, texts, tables, etc.) are properly acknowledged in the text as well as in the bibliography.
I declare that the written (printed and bound) and the electronic copy of the submitted MA thesis are identical.
I hereby also acknowledge that I was informed about the regulations pertaining to the assessment of the MA thesis Euroculture and about the general completion rules for the Master of Arts Programme Euroculture.
Signed ………
TABLE OF CONTENTS
INTRODUCTION ... 1
1. CONCEPTUAL FRAMEWORK ... 4
1.1. COPYRIGHT ... 4
1.2. TV FORMAT ... 7
1.3. COPYRIGHT PROTECTION OF TV FORMAT ... 11
2. LEGAL DEVELOPMENT ... 13
2.1. THE EUROPEAN UNION ... 13
2.2. THE UNITED STATES OF AMERICA ... 22
2.3. CHINA ... 28
2.4. COMPARATIVE ANALYSIS ON LEGAL DEVELOPMENT ... 33
3. LEGAL PRACTICES ... 38
3.1. THE EUROPEAN UNION ... 38
3.2. THE UNITED STATES OF AMERICSA ... 40
3.3. CHINA ... 41
3.4. COMPARATIVE ANALYSIS ON THE PRACTICES ... 43
CONCLUSION ... 47
1
INTRODUCTION
With the development and emergence of new media industry, as well as the process of globalisation, TV format has turned into a million-euro industry worldwide.1 The exchange of the format of television programmes among different regions, countries and continents has become predominant in this era. The inconspicuous globalisation of TV format industry also raised some important issues that need to be dealt with.
Within the television industry, there are many different players regarding TV format, including mainly the producer, the trader and the buyer of the format. On the global stage, many countries have been playing important roles in the cultural exchange and the trade of TV format. The United States alone in 4 years from 2006-2009 imported 67 and exported 87 unique TV formats.2 The European Union, as a union of 28 member states, had hundreds of
formats that was imported and exported, either within the union or outside the union.3 In
China, at the same time of period, around a quarter of the TV programmes is imported.4 With the great success of imported TV programmes, after 2010, more and more TV formats have been imported into Chinese market.5 Thus, China, the EU and the US can be considered as three main players in the field of global TV format landscape. Such high demands in the three entities are worth looking into. Therefore, the thesis will focus mainly on these three to compare their respective the copyright protection of TV format.
Copyright protection can be traced back to 1556 with the British king granting a company with its monopoly on the publication of books.6 The Statute of Anne in 1710 can be considered as the very first statute in copyright protection.7 However, it is only until the twentieth century that copyright starts to develop into a very important component in people’s lives, with the establishment of national copyright acts and the signing of international treaties within the copyright domain.
In the United States, copyright was first included in the constitution in 1787 by
1 Daniel Schmitt, Guy Bisson and Christoph Fey, The Global Trade in Television Formats (Screen Digest 2005). 2 FRAPA, “The FRAPA Report 2009: TV Formats to the World” (FRAPA, 2009), 11.
3 Ibid.
4 Yunqian Zhou, “Jing wai dian shi jie mu de jin kou xu qiu fen xi” [The Analysis on the Requirement of
Importation of Foreign Television Programmes], Xin wen ai hao zhe [Journalism Lover] 09 (2008): 44.
5 Ibid, 45.
6 Robert A. Gorman, “History and Background”, in Copyright Law, 2nd ed. (Washington, DC: Federal Judicial
Center, 2006), 1.
2
acknowledging that the Congress has the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”8
In the European Union, each member state retains its own copyright law. In history, the European Union was only able to regulate copyright law on a national level through issuing directives. Only with the signing of Lisbon Treaty, the European Union was granted by the Article 118 of the treaty to create European intellectual property rights, which would allow the EU to create a copyright above the national level.9
In China, the legislation on copyright was only made in 1991. Until now, 26 years have passed; however, there were only two minor modifications that were made respectively in 2001 and 2010.10
Many scholars have researched on the development of copyright law or the copyright protection of TV format in a single country. However, TV format is not simply a domestic product that distributes only within the border. It is an important global trading commodity that influences the whole world. Therefore, it is necessary for all parties to understand the difference of copyright protection on TV format among these important players in the field.
Therefore, this thesis aims to understand which entity has a better equipped copyright protection system for TV format among the European Union, the United States and China.
In order to answer the question, literature review will first be used to define the two terms that are being used in this thesis, and then to give the insight of development of copyright laws within the three entities. A comparative approach will be used to analyse the legal development from a theoretical angle as well as to analyse the legal practices from an empirical perspective in the end.
In the first chapter, the two main concepts that are used in the present thesis will be discussed, which will help to understand the research scope of the thesis. The second chapter will be devoted to the discussion of the legal development in the three main entities, namely,
8 National Archives Museum, “The Constitution of the United States: A Transcription”, 4 November 2015,
https://www.archives.gov/founding-docs/constitution-transcript.
9 Ana Ramalho, “Introduction”, in The Competence of the European Union in Copyright Lawmaking (Cham:
Springer International Publishing, 2016), 9.
10 Xiaoxiao Tan, “Wo guo zhu zuo quan fa gai ge de xian zhuang yu jian tao – de guo zhu zuo quan fa gai ge de
3
4
1. CONCEPTUAL FRAMEWORK
This chapter aims to understand the two main concepts which will be used in the discussion in the following chapters. The conceptual framework will help to narrow down the scope of research and clarify the definition of the two important concepts – copyright and TV format, as well as the need and the reason for the legal copyright protection of TV format.
1.1. COPYRIGHT
This section will be devoted to the discussion of the term copyright, including its definition and scope, as well as the overview of copyright protection in the television industry. This will build a base for further analysis on copyright protection of TV format.
The foundation and concepts of modern copyright law were created in western societies. Many principles and rules share similarities among different national copyright laws. However, the practices of the law might differ from one another, depending on the different domestic contexts within each country. Chinese copyright law was created under the pressure of other states. Therefore, during the creation process, Chinese legislature used various national copyright laws worldwide as models to develop its own copyright law by combining the important elements together, which makes the Chinese copyright law very much westernised.11 Nevertheless, there are still different focuses on the legal protection of copyright, based on various national interests.
In general, copyright is a certain set of rights created or recognised under national laws for the owners of intellectual creations. Due to the different origins, contexts and rationales of national copyright laws, there is no single unique copyright law that applies to works worldwide. However, there have been some international treaties signed to try to reach a unanimous agreement on the copyright protection; the most significant one would be Berne Convention adopted in 1886.12 According to article 1 of the Convention, copyright protects the “literary and artistic works,” which comprise all the productions under the literary, scientific and artistic fields.13
11 Gregory S. Kolton, “Copyright Law and the People’s Courts in the People’s Republic of China: A Review
and Critique of China’s Intellectual Property Courts”, University of Pennsylvania Journal of International
Economic Law 17 (1996): 460.
12 “International Copyright Basics”, RightsDirect, accessed 31 May 2017, https://www.rightsdirect.com/
international-copyright-basics/.
5
However, these rights are not granted everywhere worldwide. An important principle of territoriality applies to the practices of copyright protection. The territorial principle of copyright refers to the concept that a sovereign state can only exercise their rule of law within the border of the state.14 Therefore, most copyrighted works are licensed or authorised by the boundaries of boarders. This principle was very much challenged by the European Union, due to the fact that there can be cross-border copyright disputes among multiple member states within the union, on the basis of the free movement of goods and services, which will immensely complicate the problem.15
The rationale of copyright has not reached a consensus among scholars yet. However, in general, the arguments behind copyrights can be classified into two main categories, a “natural rights justification” and a “utilitarian justification”.16 One argues that copyright is
the same as other natural human rights, which was not created by the legislators but rather receives acknowledgement from the legislature,17 while the other argues that copyright was created fundamentally to promote the prosperity of science, arts and culture.18 In order to do so, authors/creators are granted with an exclusive set of rights to keep their work from being wrongly exploited, which generally includes: 1) right to reproduce, 2) right to distribute, 3) right to create adaptions, and 4) right to perform and display.19 Apart from this type of rights, which are generally referred as economic rights, there are also moral rights independently existing within copyright system. These rights may include the right to claim authorship, the right to raise objection against any distortion, alteration or any action that might undermine the work.20 However, the moral rights may not be transferred from the author, meanwhile, such rights may not gain the same emphasis as economic rights do in some legal systems.21
Copyrights are usually first entitled automatically to the original author; however, it
Geneva: World Intellectual Property Organization, 1979.
14 Malcolm N. Shaw, International Law (Cambridge University Press, 2003): 279.
15 Maximilian von Grafenstein, “Copyright Protection of Formats in the European Single Market: The
Definition of the Copyright Protected Work with Respect to Utilitarian Copyright Theories” (Master’s Thesis, Leibniz Universiät Hannover, 2013), 13.
16 Ramalho, “Introduction”, 3. 17 Ibid.
18 Gorman, “History and Background”.
19 Stephen Fishman, “Copyright Basics”, in The Copyright Handbook: What Every Writer Needs to Know, vol.
12th edition (Berkeley, California: NOLO, 2014), 4.
20
World Intellectual Property Organization, Berne Convention.
6
is possible to transfer some or all of the economic rights to other people, which makes the other the copyrights’ owner.22 It is also worth noticing that the protection of copyrights might also limit itself to some additional requirements, which means not every aspect of the work will be under the protection of copyrights. First of all, a copyrighted work needs to be expressed in a tangible medium.23 Generally, the fixed medium of the work is not restricted to any certain type of medium format. As long as the expression of the work can be traced back, the work will be qualified to be protected by the copyright law.24 Otherwise, such cases as an oral piece was unrecorded, or an expression only existed in mind and was not written down yet, do not qualify themselves as protectable by the copyright law. Second, the work must be original.25 This does not mean that the whole work has to be brand new without any
reference to existing intellectual creations. It only suggests that at least part of the work should be finished independently by the author or authors, which is new to the world. Last but not least, the work should contain a minimal quantity of creativity.26 It does not necessarily require the work to be completely innovative, creative and ingenious; it rather merely requires that a work should manifest its originality by showing “some modicum of creativity” before it could get its copyright protection.27
The Berne Convention set a minimum time of copyright protection to be the life time of the author plus 50 years.28 China is currently following the treaty, with the end of the copyright protection set on the 31 December of the 50th year after the death of the author.29 However, both the European Union and the United States now have extended the time of protection to 70 years after the death of the author.30 After the work has passed the time of copyright protection, it will enter the public domain, which means that the work belongs to
22 Fishman, “Copyright Basics”. 23 Ibid, 18.
24 Stephen Fishman, “What Copyright Protects”, in The Copyright Handbook: What Every Writer Needs to
Know, vol. 12th edition (Berkeley, California: NOLO, 2014), 112-113.
25 Robert A. Gorman, “The Subject Matter of Copyright”, in Copyright Law, 2nd ed. (Washington, DC: Federal
Judicial Center, 2006), 13.
26 Fishman, “What Copyright Protects”, 114-115. 27 Ibid, 16.
28 World Intellectual Property Organization, Berne Convention.
29 The National People's Congress of the People's Republic of China, “Zhong hua ren min gong he guo zhu zuo
quan fa” [Copyright Law of the People’s Republic of China], (Law, Beijing, 1991).
30 Robert A. Gorman, ‘Duration and Renewal’, in Copyright Law, 2nd ed. (Washington, DC: Federal Judicial
7
the public. In this case, it does not require an authorisation on the utilisation of the work for anyone.31 Some works do not fall into the scope of the categories of copyright protected work, therefore, such works have never been protected under copyright law. These works will automatically become part of the public domain.32
When discussing the copyright protection in the TV industry, a very tricky question can be raised. There is an important principle of the distinction between idea and expression. The copyright law does not protect the underlying ideas of an expression. In other words, copyright only protects the pattern of the words in literature, or the pattern of notes in music, which the author used to describe an idea or a fact, but it does not protect the idea or the fact itself.33 This does not mean that the copyright solely protects work from literal plagiarism.
Copyright also works against paraphrase, mutilation and adaption, which fall into the protective scope of “derivative works”.34 Such a measure of protecting expression instead of
idea is a way to promote the recreation of literary, scientific and artistic works without hindering the potential progress in these areas.35 Therefore, when applying the same rule to the context of TV industry, the basic idea of a TV programme is not protected by copyright law.36
1.2. TV FORMAT
The term TV format itself contains two main elements, namely, TV and format. The term seems to be easy to understand, but in reality, it is extremely hard to define. Therefore, in order to better understand what is TV format, this section will be devoted to the discussion of the defamation of the two components in the term.
Starting with the “TV” in this term, it has been universally acknowledged that there are many different genres of TV programmes. Even with a wider variety of genres, TV programmes can still be mainly categorised by two different types, reality show and scripted show.37 To be more precise, what distinguishes a reality show and a scripted show is whether
31 Fishman, “Copyright Basics”, 7. 32 “International Copyright Basics”. 33 Fishman, “Copyright Basics”, 7.
34 Gorman, “The Subject Matter of Copyright”, 23-24. 35 Fishman, “Copyright Basics”, 7.
36 Kent R. Raygor and Edwin Komen, “Limitations on Copyright Protection for Format Ideas in Reality
Television Programming”, Media Law Resource Center Bulletin, no. 4 (December 2009): 101.
8
the “actors”38 are bounded by a script or not. In Sharp’s article, four major elements were used to evaluate the difference between reality and scripted show.39 These elements – plot, theme, dialogue and sequence – are mainly used to determine whether there is an infringement of copyright in scripted shows, which means that reality shows generally do not utilise the same or similar elements in the same or similar way during the creating process.40 Thus, the TV programmes here in this thesis do not refer to TV series/dramas or TV movies. Both TV series and TV movies are based on written stories, which means the shows have ben scripted. Therefore, it does not fall into the scope of discussion in the present thesis. The TV programmes mentioned in this paper mainly represent TV reality shows for entertainment purposes. On the other hand, due to the unscripted nature of reality shows, they possess certain formats to be reproduced without repeating the same story or plot, only with the same or identical framework of the programme.
The word format derives from the Latin word formatus (liber), which means a book formed in a certain way. According to Oxford Dictionary, the word format means that “[t]he way in which something is arranged or set out.”41 As the word was first used in printing industry, its relation to television industry was only developed recently. Format has been used in many different areas, as the reference of a particular style, formula, template, form, etc. Nowadays, the term TV format has become a very popular and wide used one in the television industry. Following the definition from the dictionary, TV format is defined by industrial specialists42 as a structure of a television reality show throughout all episodes or a structure within each episode of a television reality show, along with strongly identifiable elements, which indicates that such elements as music, title and visual graphics remain the same while the programme being reproduced in foreign contexts.43 This also means that the look, the
Programming”, 99-100.
38 “Actors” here do not refer to professionals whose work is to perform on stage or television, rather refer to the
people who are filmed while attending the show.
39 J. Matthew Sharp, “The Reality of Reality Television: Understanding the Unique Nature of the Reality Genre
in Copyright Infringement Cases”, Vanderbilt Journal of Entertainment and Technology Law 8 (2006): 193-199.
40 Ibid.
41 “Format”, Oxford Dictionaries, accessed 27 May 2017, https://en.oxforddictionaries.com/ definition/format. 42 The industrial specialists here refer to Mr. Stephen Flint, Senior Vice President, Content Partnerships,
Worldwide Entertainment, FremantleMedia as well as Mr. Tony Stern, Executive Vice President, Commercial & Business Affairs, Worldwide Production, FremantleMedia.
43 CEMPVideos, International Trade of Formats and the Relevance of Format Rights, accessed 28 May 2017,
9
feeling and most rules of the television programme will stay the same, whereas the content and participants can vary a lot.
From the definition above, it is still not clear what exactly TV format is. Is it a document? Or is it a package? In order to better understand how TV format is represented, it is important to understand the procedure of creating a TV programme. Generally, the creation of the TV program possesses four main phases, i.e., 1) forming a programme idea, 2) composing a paper format, 3) building a programme format based on the addition of production and business ideas, and 4) eventually filming and airing the episodes.44 What matters most in regard to TV format is the second and third phases of the creation process. It is equally crucial to distinguish the two concepts of a paper format and a programme format. Formulating an idea initiates the process, while writing down the idea with a more developed structure and detailed programme design can be considered as the birth of the programme idea. A paper format is a presentation of the programme idea, including the structure and rules of the show, preliminary title, the theme of the show, etc., also used for the sale purposes and cooperation negotiations.45 In comparison, a programme format is a more developed and more complete version of a paper format, with more elements from the production side, such as, theme music, stage setting, requirements for participants, the presence of audience, etc.46 Together with the programme’s business plan for marketing, promotion and distribution, it will construct a full setting of the show, which determines how the TV show looks and what kind of feeling it conveys.47 These aforementioned elements are usually strongly identifiable, as the industrial professionals defined. All the elements together assemble the basic format of a specific television programme.
Furthermore, it is notable that the concept of TV format is not only used for its the production of a single show anymore. It has been expanded to the area of franchising in the TV industry. In the franchising businesses, TV format has become a kind of commodity which is somehow intangible, however, contains a full pack of assistance to help reproduce a programme with the same structure, look and feeling in foreign territories. Moran and
44 Neta-li Gottlieb, “Free to Air? Legal Protection for TV Program Formats”, Law & Economics Working Papers,
1 February 2010, http://chicagounbound.uchicago.edu/law_and_economics/215.
45 Ibid. 46 Ibid.
47 Albert Moran and Justin Malbon, ‘Understanding the TV Programme Format”, in Understanding the Global
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Malbon used “a multiple entity” to describe the package of assistance when licensing a TV format, which includes, other than the paper format and the programme format, also “production consultancy services,” “blueprint and set specifications,” “dossier of demographic and ratings data,” “off-air videotapes of programmes,” etc.48 However, in this thesis, the main focus will not be put on the discussion of the commodity, rather on the protection of an idea, layout or structure of a TV programme. Thus, the TV format in this paper mainly refers to the two main components of the whole package, the paper format and the programme format.
It seems that the definition of TV format is quite clear along with the industrial practices. Nevertheless, “format” has never been a legal term, due to the difficulties in the defining process.49 One of the main issues regarding definition is that format can be hardly
judged as a single product. Even though in the business of licensing a TV format, a format will eventually lead to a final product, namely, one television show, the paper format remains unpublished the whole time, while the programme format can be viewed by the audience during broadcasting.50 Such a situation caused the difficulty in defining whether TV format as a whole can be considered as an intellectual creation under copyright protection. Furthermore, both paper format and programme format serve as the base of the whole package for formatting the programme, meanwhile the content, the participants and many other elements from the reproduced programme will be quite different from the original show. Thus, it is barely possible to just legally define TV format as a single entity. Another problematic aspect is the difficulty of creating criteria to examine the infringement of copyright in TV format. As discussed above, there has been a well-developed set of criteria to determine the uniqueness of scripted shows, however, as for reality show, purely using the same method that used for scripted shows will not be able to fully protect the most important expressive elements in reality shows, which include the structure, rules, ideas, etc.51 Therefore, up until now, there has been no legal certainty on the copyright protection of TV format in any legal system.
48 Ibid.
49 Shelley Lane, “Format Rights in Television Shows: Law and the Legislative Process”, Statute Law Review
13, no. 1 (1 July 1992): 24-49.
50 Gottlieb, “Free to Air?,” 5.
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1.3. COPYRIGHT PROTECTION OF TV FORMAT
After the discussion on the conceptualisation of the two terms, copyright and TV format, it has become crucial to understand why is TV format important, and whether TV format is necessary to be copyright protected.
When talking about the importance of TV format, the first question raised might be why media production companies buy TV format from the others. There are two main motivations underlying in the international trade of TV format. The first motivation would be based on the thoughts of risk management. With the success of a certain TV format in foreign countries, it is more probable for the reproduction of the same TV format to achieve success in its own territory.52 Especially when the reproduction will adapt the content of the programme to the local culture, language, habits, etc., the local audience will be more interested in the show than merely buying and translating the already produced TV programmes.53 The chance of being a hit in the country will be usually higher than a brand new television format, as the licensed format has been tested before being purchased. Another reason would be the balance between cost and benefit of purchasing the TV format. Even though, sometimes, the franchising fee of a format, together with the reproduction cost of the programme will be higher than producing a programme with a newly developed format, the potential economic profit that the company can gain from the reproduction might be higher.54 Because of these two reasons, TV format has become one of the most important international trading commodities in the entertainment industry.
TV format is not a regular literary creation that we often see as copyright protected works. The format itself is not meant for reading like books, or performing like plays. Format is merely showing the way how a show should be structured and organised, which is extremely important in the television industry, because format, by combining different elements together, is supposed to attract its audience on the basis of its uniqueness and creativity. Especially when the literary content of a TV programme may not be as important as the format or the structure of the programme, TV format becomes even more valuable in
52 Albert Moran, Copycat Television: Globalisation, Program Formats and Cultural Identity (Luton: University
of Luton Press, 1998), 20.
53 Ibid, 5.
12
the television industry.55
Judging from the creation process of TV format, it is also quite important to notice the efforts that the creator put into the creation. Creating a new format for a television programme generally requires months of research, thinking and writing. The aforementioned paper format is usually tens of pages long and contains extensive intellectual production or certain putative originality.56 In this sense, TV format, in the entertainment industry is as important as other literary creation in literature.
In addition, from the perspective of TV channels, it is also economically beneficial to obtain the legal protection of TV format. Such television programmes are usually formed by many episodes in one season; therefore, once the TV show managed to achieve success, such a programme can be produced and broadcasted for many years. In this case, the TV channel will be able to attract audience for a long term.57 Other than the binding effect, the potential
licensing profit of such a TV format can also be beneficial for the television channel.
Since the TV format itself is not only valuable in the industry but also to the TV channels, meanwhile, it is also considered as an undeniable component of the intellectual property within the industry, which can greatly boost the development of the TV industry, the need of legal protection on the copyright of TV format is undoubted.
55 Harry L. Gershon, “Contractual Protection for Literary of Dramatic Material: When, Where, and How Much”,
Southern California Law Review 27 (1954): 306.
56 Robert Yale Libott, “Round the Prickly Pear: The Idea-Expression Fallacy in a Mass Communications World”,
UCLA Law Review 14 (1967): 735.
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2. LEGAL DEVELOPMENT
In this chapter, the three entities will be discussed respectively on the development of their legal systems on the copyright protection issue regarding TV format. An analysis will be made in the last section of the chapter to further analyse the differences and similarities among the three legal systems. This chapter will try to identify the important factors and criteria for the base of legal protection of TV format in the three entities. It will work as the foundation for the analysis of legal practices in the next chapter.
Within each section, the basic background of the copyright laws in each entity will be first introduced. Then, it will focus on the subject matter of copyright law to see if TV format falls into the scope of copyright protection. Together with other relevant aspects of development of copyright law, it shall use the criterion of legal certainty to assess if each entity has well equipped its legal system to deal with the copyright issues of TV format.
2.1. THE EUROPEAN UNION
Comprising 28 member states, the European Union is a massive entity when it comes to every aspect of the law. It is not possible to take a look into every member states within the union. However, researching on the EU’s stand in this area is very interesting and worthy of discovering. Therefore, in this section, national level will not be the primary concern, while the harmonisation of copyright law in the EU member states will be the focus of this section. Before 1990s, there was no copyright regulations on the European Union level.58 At that time, national legislations on copyright protection were taken into consideration. However, the Court of Justice of the European Union (CJEU) considered that the use of national copyright laws would hinder the fundamental principle of the European Union, namely, the free movement of goods and services.59
First of all, the subject matter is always the primary concern. The European Union established the well-known Copyright/InfoSoc Directive to further its harmonisation among the national copyright laws within the Union. Even though two industry specific directives – Software Directive and Database Directive – have achieved certain harmonisation on the
58 Andrea Renda et al., “The Implementation, Application and Effects of the EU Directive on Copyright in the
Information Society”, CEPS Special Report (Brussels: Centre for European Policy Studies, 2015), 6.
14
definition of copyright protected work in the past, the InfoSoc Directive did not provide any definition of copyright protected works so far.60 In addition, the same situation happens to one of the fundamental factors of copyright, originality. The standard of the determination of the originality was not provided with any harmonisation in the Directive, either.61 Therefore, the notion of copyright protected work was basically not harmonised on the European Union level. Only through directives, the EU legal system does not have sufficient legal certainty to determine if TV format can be copyright protected.
The CJEU developed its own definition of copyright protected work through its several case laws. The first important case was the Infopaq International A/S v Danske
Dagblades Forening, where the court considers the definition of copyright protected work
should be consistent among the different directives of the European Union.62 Therefore, the
court rules that as long as the work or at least part of the work contains “author’s own intellectual creation,” the work can be considered as a copyright work, as it possesses certain originality in the work itself.63 Later, in the case Bezpečnostní softwarová asociace v
Ministerstvo kultury, the CJEU expanded the definition of copyright work to the user graphic
interface, by referring back to the criterion of originality established through the case of
Infopaq v Danske Dagblades Forening.64 Due to such a criterion, the case Football
Association Premier League Ltd and Others v QC Leisure and Others proposed a really
controversial question if football game broadcasting can be considered as copyright protected work, as football match itself does not leave any room for intellectual creation on the basis of its rules.65 The CJEU then concluded that the game itself might not be copyright protected, but the rest of the broadcasting, including opening video, graphics and edited films used in the broadcasting, etc., is qualified for copyright protection. Thus, together with this case, the aforementioned case Painer vs. Standard VerlagsGmbH added a new criterion to the definition of copyright protected work, which is the free and creative choices that the author
60 Renda et al., “The Implementation, Application and Effects of the EU Directive on Copyright in the
Information Society,” 20.
61 Ibid, 18.
62 Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-06569. 63 Ibid.
64 Case C-393/09 Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury [2010]
ECR I-13971.
65 Joined Cases C-403/08 and C-429/08 Football Association Premier League Ltd and Others v QC Leisure and
15
had during the process of creation.66 Last, but not least, all the criteria mentioned in the previous cases have all been referred to in the case Football Dataco Ltd and Others v Yahoo!
UK Ltd and Others, which can be considered as the final confirmation of the criteria made
by the CJEU through its case law rulings.67
To sum up the scope of copyright protected work on the European Union level, the CJEU defines it as a certain type of subject matter that contains a minimum amount of originality in the work or at least part of the work; meanwhile, during the creating process, the author of the work must have his/her free and creative choices. The subject matter does not have a closed list of intellectual creations. It rather keeps an open definition regarding what kind of work falls into the scope of an intellectual creation. The idea would be that as long as the intellectual work meets the criteria of originality as well as free and creative choices, it might be quailed for a copyright protected work.
Now the question whether TV format falls into the scope of copyright protected work under the EU legislation remains. As there has not been any case brought up to the European Union level regarding the copyright protection of TV format, it is difficult to predict and decide whether TV format will be categorised as copyright work.68 However, by applying the abovementioned criteria, it seems that the legal certainty of the subject matter of copyright law on the European Union level has been well established, and the CJEU can surely come to a conclusion based on these factors.
Taking a closer look at the criteria, in regard to the criterion “author’s own intellectual creation,” the CJEU did not use any wording to suggest that the intellectual creation must be fixated in a tangible material, which means that the creation itself rather than the fixed form of the creation is actually under the protection of the copyright law. Even in theory, the judicial evidence is actually independent from the legal requirement, but it is also notable that without fixation of an intellectual work serving as the proof of existence of the work, it is extremely hard for the court to determine whether there is an infringement of copyright.69 TV format, as discussed in the previous chapter, contains a whole set of elements. Such
66 Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others [2011]. 67 Case C-604/10 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others [2012]. 68 von Grafenstein, “Copyright Protection of Formats in the European Single Market,” 64-65.
69 Antoine Latreille, “From Idea to Fixation: A View of Protected Works”, in Research Handbook on the Future
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elements as videos, music and graphics can separately be considered as copyright protected works. One of the most important intellectual creations within the whole format package is the paper format, which contains the structure and the idea of the television programme. It remains unclear whether the paper format will be copyright protected. Additionally, it is also important to notice the notion of part of the work. Such a wording may not include the developing phase of a work. In this case, the paper format constitutes the base for a pilot show or a television programme in the subsequent steps of TV production, but the paper format itself may not exactly be part of the work. Therefore, it is still hard to reach a conclusion at this moment. In regard to this criterion, the notion seems to be clear, but the actual legal practice still possesses uncertainty.
Then, it comes to the criterion of being able to make free and creative choices, from the perspective of author. The CJEU explicitly emphasised the importance of creation through “choice, sequence and combination” of different elements in the case Infopaq v
Danske Dagblades Forening.70 This suggests that if the work was created through a sequence of technical functions, then the work would not be qualified for the protection of copyright. However, in TV format industry, a new format was supposed to be created through a series of research and thinking process; thus, the format was aimed to be innovative by adding new elements or combining different elements in a new way. In most cases, the producers have the freedom to choose what kind of work they want to achieve. Therefore, TV format should not be precluded from this criterion of copyright protected work, which has provided sufficient legal certainty on the EU level.
Additionally, there has been a common ground on the protection of copyright discussed in the preceding chapter, the idea and expression dichotomy. What lies in the centre of this principle is how to distinguish between idea and expression as well as what constitutes idea while what constitutes expression. When thinking of expression, it is reasonable to think about techniques, styles and manners. However, these elements are not considered as expression, because they are the way of expression, through which the ideas are being expressed. Copyright law solely protects the expression, instead of the method used for expression. In the case Football Association Premier League Ltd and Others v QC Leisure
and Others, a very interesting argument was brought up that “subject to rules of the game,
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leaving no room for creative freedom for the purposes of copyright.”71 When putting into the context of TV format, it becomes more difficult to decide whether the rules set in the show would be regarded as rules of the game. If so, then copyright protection may not be applicable to the paper format itself. Such a scenario still needs future cases to be explained by the CJEU. Without defining what can be considered as a game, it is still impossible to decide on the admissibility of TV format for copyright protection.
On the other hand, the football case also raised another positive aspect. According to the ruling of CJEU, “the opening video sequence, the Premiere League anthem, pre-recorded films showing highlights of recent premier League matches, or various graphics” shall be included as copyright protected works.72 As such, when it comes to TV format, the
programme format is supposed to be copyright protected. This is quite certain within the EU legal system.
On the basis of the several criteria established above, even though it seems that the CJEU has managed to establish legal certainties in regard to the subject matter of copyright protection, it still remains ambiguous for the actual scope and the legal certainty of the copyright protection of TV format.
Due to the complexity of the cross-border and cross-state nature of the union, the fundamental principle of territoriality of copyright is very much challenged. Thus, it is also essential to assess such a principle for copyrights and related rights. Based on the Article 5 Section 2 of Berne Convention, owners are granted copyrights and related rights, only within the territorial boundary of the country of origin. However, the European Union has been trying to establish an internal market to enable the goods and services move freely across the borders of its Member States within the Union. Thus, such a boundary of border may hinder the free circulation of goods and services, which can be considered as a challenge towards the creation of the Internal Market.73 However, as an international treaty, Berne Convention binds all singing countries with the terms agreed in the treaty, which does not exclude the EU member states. Thus, the Court of Justice of the European Union (CJEU) confirms in the
71 Case C-604/10 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others [2012]. 72 Ibid.
73 P. Bernt Hugenholtz, “Copyright without Frontiers: The Problem of Territoriality in European Copyright
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ruling of the case Lagardère Active Broadcast v SPRE and GVL that the CJEU does not “purport to detract” from the principle of territoriality, which is acknowledged by both Berne Convention and Treaties of the European Union.74
Berne Convention also established the principle of national treatment, which allows the legal ruling to be based on the national copyright laws, rather than on one universal copyright treaty.75 Combining the two principles, copyright owners can pursue the legal protection of their copyrights in a certain nation state on the grounds of the copyright law of the country where legal protection is pursued.
These two principles together guarantee the copyright owner to claim his/her related rights to copyright in a country where the protection is sought under the national copyright law of that country, even though the owner does not possess the nationality of that country.
Following the international treaty, the European Union established the Brussels I Regulation to further harmonise the jurisdictions of copyright infringement among its member states. The Article 2 Section 1 of the Regulation confirmed the principle of territoriality and the principle of national treatment by stating that “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”76 Later in the Regulation, the EU also allows the copyright owner to seek protection from an infringement in the place where the damage occurred or may occur.
After finding the corresponding jurisdiction, now, the applicable law shall be determined for further ruling at court. The procedure of finding such an applicable law usually depends on two main principles, namely, lex loci protectionis and lex originis.77 The difference between the two principles is whether to use the national copyright law where the protection is claimed or not. Judging by the name, it already can be told that lex loci
protectionis uses the local regulation to conclude the ruling of a case, whereas the lex originis
utilises the regulation of the country where the copyrighted work was produced, even if the copyright protection is claimed in foreign courts.78 The European Union established its
74 Case C-192/04 Lagardère Active Broadcast v Société pour la perception de la rémunération équitable (SPRE)
and Gesellschaft zur Verwertung von Leistungsschutzrechten mbH (GVL) [2005] ECR I-07199.
75 von Grafenstein, “Copyright Protection of Formats in the European Single Market,” 19.
76 Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters [2001] OJ L 12.
77 von Grafenstein, “Copyright Protection of Formats in the European Single Market,” 20.
78 GiuseppeI Mazziotti, CEPS Research Fellow, and Co-Manager of the CEPS Digital Forum, “Copyright in
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regulation, based on the principle of lex loci protectionis, through Article 8 of Rome II Regulation, by stating that “the law of the country for which protection is claimed” shall be used for the ruling of cases regarding copyright infringement.79
However, such a principle does not cover every situation. With the emergence of modern technologies and the trend of globalisation, there is a new form of copyright infringement called ubiquitous infringement. It generally refers to an action that causes infringement of copyrights in multiple countries all over the world.80 Such a scenario can happen for tangible commodities, meanwhile, it is more likely to happen with intangible products, such as TV shows transmitting through satellites, films streaming through the internet, etc. In the TV industry, the main problem focuses on whether the transmission location of origin or the transmission receiving destination should be the place to pursue copyright protection. According to a comprehensive report on intellectual property law, none of the national statues of the EU member states has provided the legal basis for choosing the applicable law when concerning the ubiquitous infringement, nor does the European Union regulations.81 Also, due to the lack of legal basis, there is no legal definition of ubiquitous infringement within the European Union either. This means that the Article 8 of Rome II Regulation should also be applicable in the cases encountering ubiquitous infringement.82
Without a clear instruction, the courts need to apply different national copyright laws to separately rule the case according to the different nation states where the copyright protection is sought.83 This could lead to a massive use of multitude of laws. As for the copyright owner who is seeking for protection, it will also result in a massive amount of work trying to prove under each national copyright law that his/her copyrights have been infringed.84 According to some scholars, the use of the lex loci protectionis principle was meant to solve this problem by minimising the ambiguity of the determining process of the location where the infringement actually occurred, as some of the infringing acts may take
Studies, June 2013), 63.
79 Regulation (EC) No 864/2007 of the European Parliament and of the Council on the law applicable to
non-contractual obligations (Rome II) [2007] OJ L 199.
80 von Grafenstein, “Copyright Protection of Formats in the European Single Market,” 20.
81 Toshiyuki Kono, Intellectual Property and Private International Law: Comparative Perspectives (Oxford:
Bloomsbury Publishing, 2012), 153.
82 Ibid. 83 Ibid.
84 Rita Matulionyte, Law Applicable to Copyright: A Comparison of the ALI and CLIP Proposals (Cheltenham:
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place in multiple states.85 In addition, the different courts may have different rulings on the same case, depending on their domestic conditions and their rules of law. Apart from it, it is also very probable to have a law suit against multiple defendants who are from different member states within the European Union. Then, the copyright owner might need to sue each single one of the defendant in their own jurisdiction territory. This could also be a huge problem when trying to protect the copyrights and related rights.
To solve this complicated situation, the Court of Justice of the European Union (CJEU) established new rules through its case law. Starting with the case of Shevill and Others vs.
Presse Alliance, the court set the rule that the court of the place where the infringer’s business
is established shall have the jurisdiction, in the meantime, the court can rule on all the damages caused worldwide by the infringement.86 This ruling furthered the ruling of cases
where more intellectual property rights are concerned, which significantly reduced the barriers for the claimants to pursue protection for the infringed rights.
When it comes to the case that different defendants are sued against copyright infringement, the Brussels I Regulation requires, through Article 6, that all the defendants can be sued together as long as it is proven that the defendants are closed connected in the dispute.87 This rule is meant to eliminate the possibility of getting differing court rulings during separate prosecutions. With case law by the CJEU, Painer vs. Standard VerlagsGmbH
and Others furthered the regulation by ruling that the distinction between the legal bases of
different national copyright laws should not impede the application of the Article 6 of the Brussels I Regulation.88 This can be seen as one of the biggest steps to harmonise the principle of territoriality within the European Union, which actually allows the court to reach a ruling in one territory without the need to make ruling separately.89
As for jurisdiction and applicable law, through harmonising the territorial principle to a certain extent, the CJEU has established certain rules in different contexts, such as multiple locations of damage, multiple defendants, etc., to facilitate the legal proceedings.
85 Dick van Engelen, “Rome II and Intellectual Property Rights: Choice of Law Brought to a Standstill”, NIPR,
2008, 442.
86 Case C-68/93 Fiona Shevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd v
Presse Alliance SA [1995] ECR I-00415.
87 Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters [2001] OJ L 12.
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With more rules created in these two aspects, it surely offered more certainty for the copyright protection of TV format.
Nevertheless, even though it is a significant moment for the harmonisation on the territoriality on the EU level, it does not suggest that the principle of territoriality is actually harmful for the copyright protection. In many cases regarding the licensing of television format, the TV production company may adapt the show to their own cultural circumstances. Such different cultural backgrounds are usually defined by territory, which means that the franchise is usually granted on the basis of territory. Therefore, it is not fair to sue the infringement of copyrights by excluding the factor of territory. Also, it is essential to promote the local culture, artists and performers through such TV programmes, which makes the territoriality a good way to promote cultural diversity.90 In the meantime, due to the different
economic situations within EU member states, the principle of territoriality allows the licensing fee to be adjusted and more reasonable according to the distinct economic conditions.91
Last but not least, the InfoSoc Directive distinguished clearly the right of distribution and the right of communication to the public in two different articles, namely, Article 3 and 4. The right of distribution was only applicable to “the work incorporated in a tangible article,” which means that the circulation of the intangible copies of the copyright works is not under protection.92 The case law by the CJEU also confirmed such principle in the ruling of several cases.93 However, the right of communication to the public contains the action of making contents available to the public through the means of wire or wireless communication, which refers to the use of internet or other intangible way of transmission.94 In order to further the free movement of goods and services, it is not surprising that the European Union established the principle of exhaustion, which means that as long as the right holder has given his/her consent on the sale or the transfer of the ownership within the European internal market, the owner does not have the right to further interfere with the dissemination of the work and its
90 Hugenholtz, “Copyright without Frontiers,” 19. 91 Ibid.
92 Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects
of copyright and related rights in the information society [2001] OJ L 167.
93 Renda et al., “The Implementation, Application and Effects of the EU Directive on Copyright in the
Information Society,” 25-26.
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copies.95 The harmonisation of the rights and the establishment of the principle all revealed the ambition of the European Union on achieving the internal market, however, they did not further consolidate the legal certainty in solving disputes of TV format. Such an issue still is still left vague in the EU legal system.
2.2. THE UNITED STATES OF AMERICA
Unlike the European Union, the United States of America has established its Federal Copyright Act in 1978, which is generally referred as the Copyright Act of 1976. The Act defined the subject matter of copyright as the “original works of authorship fixed in any tangible medium of expression”.96 This simple article contains several important elements regarding copyright protection.
Most of the elements, similar to the European Union, have been discussed in the previous section. First, the work has to be somewhat original. Second, it has to be fixed in a tangible way. And third, copyright law only protects the expression of an intellectual creation, while the “ideas, facts, procedures or concepts” are excluded from the copyright protection.97
Other than these basic principles, the US legal system also gives some other criteria to determine whether the elements within an intellectual creation can be copyright protected. In addition to the first and fundamental doctrine, the dichotomy of idea and expression, the
scènes à faire doctrine was first introduced in the case Schwarz v. Universal Pictures Co. to
refer to the elements and scenes in motion pictures that have to happen or be filmed. Due to the fact that the scenes, elements, characters or settings “flow naturally” from a given context or subject matter, these parts of the work do not require originality. Thus, scènes à faire do not even meet the criteria to be eligible for copyright protection. When assessing the elements of a work, it is then essential to distinguish those scènes à faire from the protected ones.
From the cornerstone doctrine of copyright law, it has been clear that expression is supposed to be protected, however, if an idea can only be expresses in a very limited number of ways, then the expression itself will not be eligible for protection any more, as it might
95 Ibid.
96 U.S. Copyright Office, “Copyright Law of the United States and Related Laws Contained in Title 17 of the
United States Code” (2016).
97 Jessica E. Bergman, “No More Format Disputes: Are Reality Television Formats the Proper Subject of
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lead to a monopoly for the first author who expressed the idea.98 Such a doctrine is referred as the merger doctrine in the US legal system, which basically means that the expression has been merged or bound with the idea itself. Thus, such expressions should not be copyright protected, as it will create barriers for the inspiration for future creations.
Generally speaking, ideas and facts do not fall into the scope of copyright protection. However, the doctrine of compilation gives the exception in this case. Compilation refers to the collection and gathering of ideas, facts and data that have been organised in a certain way. Through the case Feist Publications, Inc., v. Rural Telephone Service Co., the Supreme Court of the US established three requirements to qualify the work as a copyrighted work, according to the compilation standard:
(1) the collection and assembly of preexisting material, facts, or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an "original" work of authorship.99
When the work meets the three requirements, the particular way of arranging the ideas and facts actually might get protection under copyright law.
With the establishment of these doctrines, the US copyright law actually provides more detailed instruction on determining whether a work should be copyright protected. These doctrines did not only provide more instruction, but also cover many different situations of copyright protection. With such legal certainty, it seems to be easier for the court to reach a conclusion on the admissibility of TV format. Based on these doctrines, it is still hard to generalise the protection of TV format. It really depends on the status of each individual case. Even though the legal certainty has been achieved on legal proceedings, the certainty of the question whether TV format falls into the scope of copyright protection still remains unclear.
During a dispute of copyright protection, if the claimant’s work can be considered as a copyright protected work, then it becomes crucial to evaluate the similarity between the two works, in order to further determine whether there is an infringement of copyright.
However, proving the unlawfully copying of the original work can be a more problematic procedure. The court needs to determine if the two works in the dispute are
98 Raygor and Komen, “Limitations on Copyright Protection for Format Ideas in Reality Television
Programming”, 101.
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substantially similar.100 Thus, the doctrine of substantial similarity was established within the US federal legal system. The idea of substantial similarity might be confusing sometimes, due to the fact that the determination actually comprises two layers of similarity. The first layer here would be if the defendant did use the work as a source of inspiration or model. In other words, does the copying fact stand?101 On the second layer, it is also important to see if the copying would amount to the level of misappropriation, which means whether the allegedly infringing work comprises sufficient copying elements to make it unlawful.102 Interestingly, even though the determination of substantial similarity has been widely used across the United States, there has been no universally acknowledged legal definition of the term.103
Instead, the courts of different circuits have established several tests to determine the substantial similarity between the works in question. There are mainly four most notable tests involved in the determination of copyright infringement, namely, the abstractions test, the dissection test, the pattern test, and the total concept and feel test.104
The abstractions test was brought up by the Judge Learned Hand in 1930.105 The idea behind the test is that all the elements that constitute a work should be broken down into several levels of abstractions. Such abstractions shall be scaled from the most general ones to the most specific ones. Then, it would be the time to determine where the line of the infringement lies or whether the copying actions have amounted to the sufficient quantity to be judged as misappropriation.106 However, the abstractions test, according to critics, does not constitute itself as an actual test; instead, it is merely a restatement of the distinction between ideas and expressions.107 Additionally, the test itself does not provide any guidance on the standard of the determining process of where the infringement line lies.108 Thus, it is difficult to have consistent test results.
100 Daniel Fox, “Harsh Realities: Substantial Similarity in the Reality Television Context”, UCLA Entertainment
Law Review 13, no. 2 (2006): 227.
101 Ibid. 102 Ibid. 103 Ibid, 228.
104 Bergman, “No More Format Disputes.”
105 Jarrod M. Mohler, “Toward a Better Understanding of Substantial Similarity in Copyright Infringement
Cases”, University of Cincinnati Law Review 68, no. 3 (2000): 981.
106 Ibid, 982. 107 Ibid.
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Later, in 1945, the pattern test was introduced, based on the abstractions test. From its name, it is evident to tell that the test was built to examine the pattern of a work and then to further determine if there is an infringement of copyright. The pattern was defined by the professor Zechariah Chafee as “the sequence of events and the development of the interplay of the characters.”109 Through the break-down of the elements in the work and the examination of the pattern of the work, the court can determine if the two works in dispute are substantially similar. Thus, the court can further decide if the similarity constitutes an infringement in copyright in the particular case. Nevertheless, the test itself also contains certain flaws. Unlike books, plays or films, in such works as paintings, there is no occurrence of any event or any sequence of activities.110 Therefore, in cases like this, it will be of little
use to apply the pattern test.
In 1970, the Ninth Circuit introduced a brand-new standard to determine the substantial similarity, namely, the total concept and feel test.111 Such a test was quite unusual in the assessment of copyright infringement, due to the idea and expression distinction. The total concept and feel test assesses the work as a whole, which does not exclude the un-copyrighted elements within the work. The actual criteria of the test are rather vague in the sense that the court did not provide enough guidance on how to evaluate the “total concept and feel”.112 Merely stating that the total concept and feel crossed the line of substantial similarity is hardly sufficient for the court to reach consistent results in the justice history. On the other hand, it also seems to undermine the key principle of copyright law, in particular, the distinction between idea and expression.113
Later on, the dissection test was established in 1988 through the case Concrete
Machinery Company, Inc. v. Classic Lawn Ornaments, Inc. by the First Circuit. This
approach requires the court to dissect the elements of the work and distinguish the protectable ones from the un-protectable ones.114 The court then should only assess the similarity of the protectable elements between the two works. Theoretically speaking, every work can be dissected into the small elements that have been used by other authors, but it does not
109 Zechariah Chafee, “Reflections on the Law of Copyright: I”, Columbia Law Review 45, no. 4 (1945): 514. 110 Mohler, “Toward a Better Understanding of Substantial Similarity in Copyright Infringement Cases”, 984. 111 Ibid.
112 Ibid, 987. 113 Ibid, 986.
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necessarily mean that the defendant has copied the work of others. Therefore, on the process of dissection, there comes another question, what is the appropriate size of the broken-down elements so that the element would be big enough to be representative and meanwhile small enough to be specific?115
The four tests have become the standards for the determining process of copyright infringement in many different cases involving intellectual works. Although it seems very comprehensive to have developed four different tests to determine substantial similarity, some of the tests indeed do not further consolidate any legal certainty. For instance, the abstractions test merely restates the necessity of distinguishing idea and expression, but it does not provide any further guidance on future ruling. Also, the total concept and feel test is even more ambiguous in its evaluation process, which even makes it more uncertain. Therefore, in the context of TV format protection, it is first hard to say which test the court will apply to assess the substantial similarity; it is also hard to answer the question whether these tests will be effective when evaluating a TV format.
At least, it is certain that the name of a TV programme will fall into the protection of trade mark. The trade dress can also enjoy copyright protection, which generally includes the audio-visual elements of a television programme. These elements generally will form the look and the feeling of a TV show.116
Up until now, the courts across the country have never confirmed the admissibility of TV format under copyright protection.117 Even though there have been several law suits regarding the dispute on copyright protection of the format of certain television programmes, most of the cases are either dismissed or settled outside the court before the court reaches a judgement. Since the courts in general to do not response directly to such cases, there have been few judicial judgements in the TV format area. Even if some cases have been reached conclusions, the courts have never been in favour of the copyright protection for television. In other words, none of the media companies has succeeded in claiming copyright infringement of TV format.
The very first case regarding the copyright infringement of TV format was filed in 2000. The case Fox Family Prop. Inc. v. CBS Inc. was meant to settle the dispute on two
115 Mohler, “Toward a Better Understanding of Substantial Similarity in Copyright Infringement Cases”, 988. 116 Ibid, 102.
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“similar” programmes which featured with time-limited competition all over the world for a group of people.118 However, the case was voluntarily dismissed, which did not provide any further discussion on the copyright issue within the TV format industry.
Later, in 2001, the case Survivor Prods. LLC v. Fox Broad. Co. was brought up in the court.119 Along with claiming copyright infringement through various substantial similarities asserted, the plaintiff also requested to use the total concept and feel test to examine if the two programmes are substantially similar. However, the case, similar to the previous one, was also settled outside the court with confidential agreement. Thus, there is no way to tell the court’s position in the dispute.
In 2003, a law suit was brought up by CBS Broadcasting against American Broadcasting Companies, claiming the show I’m a Celebrity, Get Me Out of Here copied the format of CBS’s Survivor.120 Both shows were featured with a group of individuals
participating in various challenges in remote locations. The winner of the competition will be rewarded while the one with least score will be eliminated from future competition. The US District Judge denied copyright infringement by stating that the elements of CBS’s show were not copyright protected due to the fact that these elements are part of the scènes à faire, which derive from other genres of television programme. As for the previously discussed compilation standard, the Judge also explained that the compilation does not prove sufficient originality to be considered as copyright protected compilation. Apart from it, the Judge also concluded that there are many new elements found in ABC’s show, which were not part of CBS’s show. As such, the case was concluded with the ruling that the two TV programmes are not substantially similar; thus, it does not constitute copyright infringement.
On the basis of the previous cases, it is evident that in the US context, the courts are generally unwilling to admit TV format as copyright protected work. Most cases being settled outside court also suggests the complexity of the issue. According to some scholars, television producers in the industry also seem to start accepting the concept that TV format does not fall into the scope of copyright protection, especially after the case CBS v. ABC.121
118 Fox Family Prop. Inc. v. CBS Inc., No. 00-CV-11482 (2000).
119 Survivor Prods. LLC v. Fox Broad. Co., U.S. Dist. LEXIS 25512 (2001). 120 CBS Broad. Inc v. ABC, Inc., U.S. Dist. LEXIS 20258 (2003).
