Having The Ten Factor: Telly Formats Tin Move Protected Past Times Copyright If They Bring Clearly Identified Features Distinguishing Them From Like Types Of Shows

Paul Musa

A few weeks agone the High Court of England in addition to Wales issued an of import determination [discussed on IPKat here] which, later a long fourth dimension of uncertainty, has confirmed that TV formats are inward regulation eligible for copyright protection nether United Kingdom of Great Britain in addition to Northern Ireland of Britain in addition to Northern Republic of Ireland law.

The representative is Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch) (19 Oct 2017).

1709 Blog friend Paul Musa (University of Southampton) analyzes the decision.

Here’s what Paul writes:

“In Banner Universal Motion Pictures Snowden J confirmed that copyright protection is available to TV formats, provided that they attain a minimum standard. This criterion is that they must have: (i) a number of clearly identified features which, taken together, distinguish the present inward inquiry from others of a similar type; in addition to (ii) that those distinguishing features are connected amongst each other inward a coherent framework which tin live on repeatedly applied then equally to enable the present to live on reproduced inward recognisable form. However, Minute Winner could non run across this criterion because it was unclear in addition to lacking inward specificity.

To laissez passer readers a chip to a greater extent than context, this was a representative administration conference that was brought earlier the High Court. One of the primary issues that the courtroom discussed was whether copyright protection could subsist inward a TV format, inside the pregnant of SAS). However, this does non hateful that every aspect of the operate must live on original. The operate must live on taken equally a whole in addition to it tin include aspects that are neither new nor ingenious.

Due to the CDPA non defining what a dramatic operate is, Snowden J applied Nourse LJ’s definition of a dramatic operate (Norowzian v Arks Limited (No 2) [2000] EMLR 67 at 73). Nourse LJ defined it equally "a operate of action, amongst or without words or music, which is capable of beingness performed earlier an audience”. Snowden J’s conclusion was based on Nourse LJ’s definition: each recorded episode of a TV format tin qualify for copyright protection, equally copyright would live on infringed if unopen to other political party re-enacted it. However, he stressed that this representative instead concerns whether a format is separately capable of copyright protection.

Snowden J analysed the reasoning of the judges inward a seminal Privy Council determination on TV formats, that was exterior of this jurisdiction (Green v Broadcasting Corporation of New Zealand [1989] RPC 700). This representative is relevant to the United Kingdom of Great Britain in addition to Northern Ireland of Britain in addition to Northern Republic of Ireland because New Zealand has a similar closed-list organisation to the UK. Therefore, the reasoning of the bulk tin live on seen to live on reflective of the UK’s reluctance to grant protection inward TV formats. Somers J, who was role of the majority, held that such scripts equally existed could non live on a dramatic operate because they could non live on acted or performed, beingness "no to a greater extent than than a full general system for a proposed entertainment".

Snowden J reformulated Gallen J’s dissenting judgment inward Green. He stated that copyright protection volition non subsist unless, equally a minimum: (i) at that spot is a number of clearly identified features which, taken together, distinguish the present inward inquiry from others of a similar type; in addition to (ii) that those distinguishing features are connected amongst each other inward a coherent framework which tin live on repeatedly applied then equally to enable the present to live on reproduced inward recognisable form.

However, inward applying such criteria to this representative Snowden J held that at that spot was no realistic prospect of the Minute Winner document qualifying for protection. Snowden J highlighted that the surgery of a chore against the clock to win a prize was a mutual characteristic of games shows. As good equally that the Minute Winner document did non specify telephone commutation information such equally the type of i infinitesimal tasks, who the contestants should live on or the length of the programme.

Snowden J likewise highlighted that fifty-fifty if BUMP could institute copyright inward its Minute Winner document, the format described inward the Minute Winner document in addition to that used inward Minute to Win It were "different inward every cloth respect". Thus meaning, that at that spot was no similarity beyond the fact that they both involved games played against the clock for i minute.

Green, or the Opportunity Knocks case

Implications of the ruling

This representative is of smashing significance to the media manufacture in addition to highlights the dangers of sharing ideas inward a commercial environment, without copyright or contractual protection. It is imperative that television receiver producers in addition to those amongst rights to TV formats, ensure that they receive got robust non-disclosure agreements in addition to that 3rd parties sign them. This is probable to live on an easier route to enforcing one’s ain rights, equally opposed to bringing a claim for copyright infringement in addition to needing to satisfy the requirements stated past times Snowden J.

In company to growth the chances of their TV format beingness afforded protection past times copyright, TV producers in addition to broadcasters ought to include information such equally where the activeness is to receive got place, who the contestants should be, the alternative process, the length of the programme, when the present should live on aired, the source of the prizes in addition to catchphrases. It is vital that TV producers in addition to rights holders move along a constant in addition to regularly updated trace of piece of occupation organisation human relationship of this information. In doing then they volition receive got a improve direct chances than Mr Banner in addition to BUMP, inward coming together the minimum criteria educate out inward Snowden J's judgment.

However, the determination is unsafe for how United Kingdom of Great Britain in addition to Northern Ireland of Britain in addition to Northern Republic of Ireland copyright is defined. This is because TV formats equally copyright subject-matter are dangerously on the verge of the sentiment side of the idea/expression dichotomy. H5N1 difficulty inward deciding these cases is distinguishing betwixt whether what has been copied is the seem of ideas, rather than pure ideas themselves. It appears that TV format producers similar the claimant, convey these claims to protect the latter from beingness copied. However, these claims are exterior the remit of copyright protection.

Whilst Snowden J correctly decided against granting copyright inward Minute Winner, because a political party cannot claim a monopoly on games beingness played against the clock for i minute, it cannot live on said that other judges inward the futurity volition correctly hit then equally well. Copyright does non grant monopoly rights in addition to therefore, at that spot is for sure potential for things to move out of command if judges start out to grant monopoly rights inward TV formats. These practical concerns are a contributing ingredient equally to why the United Kingdom of Great Britain in addition to Northern Ireland of Britain in addition to Northern Republic of Ireland has been hesitant, to freely grant copyright protection to less conventional works, similar TV formats.”