Monday 20 August 2012

More on television formats

Just a very short post to update you that, further to my post in July about CBS's claim that ABC's The Glass House television series format copied its Big Brother series, CBS has now dropped its claim.

According to Reuters, last week The Glass House ranked 87th most viewed television show (one assumes, in the US) with an audience of 1.59 million, whereas Big Brother had three episodes ranking in the top 15, each with more than 5 million viewers.
© Pat Dalton

CBS used the ratings as a basis for withdrawing its claim, saying that "The viewers have spoken and delivered the ultimate form of justice against The Glass House" and that "As a result, we filed in federal court this morning a voluntary dismissal without prejudice of our claims against ABC. The contract and trade secrets claims against former Big Brother producers for violating their confidentiality agreements will continue separately in arbitration."
Of course CBS reserves the right to re-file the claim against ABC, however for now the law on copying television formats is no clearer.
It is interesting that the IPKat has just reported on a German decision which addresses whether a European Patent for a telephone voting technique used on a television show was valid. The court held that it was not. The reasons given for the judgment have still not been handed down, however the IPKat has suggested that perhaps the attempt to seek protection of a television show format using patent law was deployed because the German courts had already denied protection using copyright.
This blogger can't think what patent CBS could try to file to protect Big Brother, and perhaps it doesn't need intellectual property protection if ratings continue the way that they have been going, however if any readers have other ideas on how television formats could be protected, or indeed whether they should be protected, this blogger would be interested to hear your thoughts.


Richard McD Bridge said...

The situation is very simple although vested TV interests have and contagious stupidity has blocked progress for decades.

Formats should be protected like (not "as") copyright works - as I proposed decades ago. We might have got there had the late Hugh Laddie not screwed it up in the Privy Council before my involvement.

The law is set out and remains as set out in the long articles that Shelley Lane and I wrote for EIPR much to Tony Martino's chagrin.

The draft bill prepared by Shelley Lane's husband's firm was defective by a drafting error of theirs - the use of the word "resemble" in stead of "reproduce" (in that the latter requires copying although the former does not). It was leaped on by Alan Williams, but he balked at at the overall solution for reasons about which I speculate. But that was (IMHO) the bill's only material defect.

A format is ideally suited to copyright-style protection. The double uncertainty of the ambit of the work and the ambit of infringment (a postulate of the malign Peter Britton and his proteges in the civil service) is EXACTLY the sort of issue that copyright-style law is suited to evaluate.

You will understand that I say "copyright style" to avoid international convention overprotection.

The ongoing rows prove I was right - a protection is needed.

João de Almeida e Paiva said...

In Portugal we still have a registry for copyright at the Inspeção Geral das Atividades Culturais. IGAC. The register at IGAC is not constitutive of any rights (the right is recognized upon the creation of the work and does not depend on its register or any other formality), but constitutes a presumption of the right's property. In case of judicial dispute, the burden of proof falls on the other part. TV producers usually negotiate television formats holding the document that certificates the register of the guide lines of the programs made in theirs names, although, in fact, they negotiate the plans of the boat and not the boat itself – the old idea / expression dichotomy – . But, to what extent could one consider that the copied TV program is no more than a derivative work of the television format owned by the TV producer that needs his authorization to be used ? If it is sufficiently detailed could an analogy with the films scripts be established ? João de Almeida e Paiva