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Wednesday, 7 April 2010

I'm a Mediator -- Get Me Out of Here!

There may not be such a thing as a TV Show Format Right, but that isn't stopping the World Intellectual Property Organization (WIPO) stepping in to help sort out disputes over programme formats. This is actually WIPO's second venture into dispute resolutions that may, but do not necessarily, embrace IP rights -- the first being that body's excellent and often highly effective service relating to disputes over domain names. Anyway, according to WIPO's press release today (PR/2010/636):

"WIPO’s Arbitration and Mediation Center (WIPO Center) and the Format Recognition and Protection Association (FRAPA) are to join forces later this month in providing alternative dispute resolution services to address problems of format plagiarism or the unauthorized copying of television (TV) formats, such as those used for game, reality or talent shows and sitcoms. Programs using these formats are often remade in different markets using local parties.

While the format industry is flourishing and the trade in TV formats is growing, the industry is characterized by fierce competition and frequent disputes. These disputes often relate to the unauthorized use of formats owned by third parties and can be difficult to resolve in court because of differences in relevant national laws in this area.

Under the new collaboration, the WIPO Center will take on FRAPA’s existing mediation activity and will administer TV format-related disputes filed under the WIPO Mediation and Expedited Arbitration Rules for Film and Media.

Launched in December 2009, these Rules are tailored to the specific characteristics of disputes arising in the film and media sectors. They foresee appointment of a specialist from a dedicated international WIPO Panel of film and media mediators, arbitrators and experts. The WIPO Center and FRAPA also envisage providing specialized training and information sessions on format dispute resolution.

[Expression of usual sentiments on the part of FRAPA and WIPO]

FRAPA is the international format industry association dedicated to the protection of formats. FRAPA aims to ensure that television formats are respected by the industry and protected by law as intellectual property [The Kat is not aware of WIPO's Members having taken a position on TV formats being a subject that should be protected by IP. Has he missed something?].

The WIPO Center is a leading international provider of a range of procedural alternatives to court litigation. Alternative dispute resolution services, such as mediation and arbitration, are designed to save parties involved in commercial disputes both time and money.

The WIPO-FRAPA collaboration will be officially launched at FRAPA’s 10th anniversary event on April 11, 2010 at 6:30 p.m. at Plage le Goéland in Cannes, France".
The IPKat remains unconvinced that programme formats need or deserve any greater protection than that offered by existing rights such as trade marks and copyright, since it seems to him that format protection comes closer to capturing an idea rather than its means of expression than do the existing rights -- but that does not stop him welcoming the new collaboration: anything that enables parties which are at loggerheads with one another to reach a successful conclusion to their disputes makes sound commercial sense and should please investors, programme producers and viewers alike. Merpel says, I wonder whether the dispute-resolution format will itself become the subject of a format rights ...

Big Brother here
I'm a Celebrity -- Get Me Out of Here
Most depressing reality programme ever here

6 comments:

Uncle Petie said...

The IPKat remains unconvinced that programme formats need or deserve any greater protection than that offered by existing rights such as trade marks and copyright, since it seems to him that format protection comes closer to capturing an idea rather than its means of expression than do the existing rights -- but that does not stop him welcoming the new collaboration: anything that enables parties which are at loggerheads with one another to reach a successful conclusion to their disputes makes sound commercial sense and should please investors, programme producers and viewers alike.

I'm not seeing this. Presumably if programme formats don't need or deserve IP protection, then granting them is just bog-standard restriction of competition in the market for TV shows. Investors and programme producers might think it's a good idea to come to some sort of arrangement about who gets to compete in that market and who doesn't, but I don't see what the viewers are getting out of this.

Well, maybe the viewers gain in the sense that the world probably needs fewer Big Brother clones rather than more, but this seems like a roundabout way of achieving that goal.

Anonymous said...

Richard Posner don´t analysing the conception of 'format plagiarism' in his great book 'The Little Book of Plagiarism', 2007. But after reading it, you get sure of that the expression 'plagiarism' is all too vague to be used in i.a Geneva.

Anonymous said...

To "Uncle Petie"

I think you may be mis-understanding what has been written. As I understand it, the IPKat feels that programme formats already have some protection under copyright and trade mark law; he thinks that that protection is sufficient and accordingly does not support FRAPA's apparent efforts to gain greater protection for them; but supports the present initiative to resolve disputes over (the existing) rights where there are disputes.

Uncle Petie said...

@ "Anonymous" 10:22

My point (which I guess could have been clearer) was it there are already fora for resolving copyright and trademark disputes. It's not clear what the Format Recognition and Protection Association adds to the party, apart from a move towards Format Recognition and Protection.

It's not hard to see how more robust protection for TV formats would help dispute resolution - there'd be much greater certainty on all sides about what was covered and what wasn't. If you accept that, it seems inconsistent to be simultaneously against greater protection, and for dispute resolution via that method.

Anonymous said...

This post led to some discussion in my office as to what rights might validly be used to protect TV show formats.

Take a hypothetical situation in which a TV show is produced which uses the exact same rules and structure as an existing programme. The trade marks are all different, and the set design is completely different. However, the rules and gameplay are the same.

The conclusion we reached was that one might use copyright infringement on the premiss that there must be a written document somewhere in both TV studios detailing the rules. In that case those rules might be said to be a copy of the originals.

But if the copying rules used different language, for example, would it still be a copy? It would be a difficult case to argue, certainly.

That instinctively feels unfair to me; that one TV company might be allowed to directly copy the central principle behind a show. Of course, that leads to further questions as to what is new (or new enough) to warrant protection as a "TV show format". All TV shows are derivative in one way or another.

We did consider that the ideal solution would be to patent the rules of the TV show, using established case law on novelty and inventive step. Of course that might open up a whole new (and very large) can of worms...

Anonymous said...

When I read Jeremy´s piece ‘Of form and format’ in JIPLP 2006 p. 625, I grasped his view to be more positive to a ‘Law of TV-format’ than i.a Privy Council in Green v. Broadcasting Corp of New Zealand, All England Law Reports (1989), p. 1056:
‘The protection which copyright gives creates a monopoly and there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world ... Moreover it seems to their Lordships that a dramatic work must have sufficient
unity to be capable of performance and that the features claimed as constituting the
”format” of a television show, being unrelated to each other except as accessories to be
used in the presentation of some other dramatic or musical performance, lack that
essential characteristic’.

But, now I´m not sure that I read Jeremy´s earlier Editorial correct. Anyway, in my view we must take up a cautious attitude to new monopolies ‘in order to avoid injustice’.

Mats Björkenfeldt

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