THE CHRISTMAS COPYKAT

In Canada, the House of Commons has triggered a parliamentary review of Canada's Copyright Act, first passed in 1921, which will be conducted by the Standing Committee on Industry, Science and Technology. TorrentFreak comments that the music industry was quick to weigh in, congratulating government ministers and making it known that the so-called 'Value Gap'  - how the tech giants seem to be good at everything except removing infringing material, and why likes of Google don't seem keen to pay for what drives the likes of YouTube - be high on the agenda. The 2012 Act tackled a number of important issues, such as allowing time and format shifting, plus backup copies, fair dealing and caps on statutory damages for non-commercial scale infringement - and a review of copyright law every five years, a period that expired at the end of June 2017.

And talking of the Value Gap, YouTube has now just signed a second global, multi-year agreement with the Universal Music Group, amid mooted plans to expand its subscription businesses. Universal said the deal would provide its artists more flexibility and pay, and strengthen YouTube's commitment to managing music rights. YouTube reached a deal with the second of the three majors. Warner Music Group, in May. Bloomberg reports that the negotiations come in advance of YouTube's launch of a new paid music service that is expected to go live in March 2018. And not to be left behind, Facebook and Universal Music Group have signed an 'unprecedented global, multi-year agreement' under which UMG licenses both its recorded music and publishing catalogs for video and other social experiences across Facebook, Instagram and VR platform Oculus.

In good news for the recorded music sector, the US Copyright Royalty Board has determined that SiriusXM must pay 15.5 percent of it's revenue for the next five years (beginning in 2018 through to 2022, although the full determination has yet to be posted on the CRB's website while the participants scrutinize the document to make sure proprietary data is not publicly revealed. The rate represents a near 41 percent jump from the 11 percent the service is currently paying, although it's short of the 23 percent that SoundExchange was advocating for. But the Hollywood Reporter it's better than the static rate that SiriusXM was hoping for from the Court. However in a less palatable move, the Board has ruled that pre-existing subscription services (Music Choice and Muzak) will enjoy a reduced rate of 7.5 percent of revenue for the next five years. That is down from 8.5 percent of revenue in the current year that the two services are paying to the industry.

But the battle between the tech behemoths, and giants of the content industries, is in full spate.  Now the likes Google and Facebook are facing off against Hollywood studios and record labels over how to update the North American Free Trade Agreement to protect copyright in the digital age. Silicon Valley is pushing for exceptions to copyright rules for online platforms and Internet service providers it says are needed to keep content flowing on the web. Meanwhile, the U.S. government seems to be taking positions more favoured by companies such as Walt Disney Co. and Time Warner Inc., which are lobbying for stronger protections for copyright owners. The new (US led) proposals for NAFTA would limit allowances for online use of copyrighted material, a position seemingly less supportive of online platforms than existing U.S. law, in particular a watering down of fair-use exceptions and a re-evaluation of 'safe harbor'.  More on Bloomberg here

T Bone

Back to music: A group of 41 recording artists is urging the US Congress to sort out the somewhat odd (and now much litigated) position of pre-1972 sound recording copyrights in US federal law with the new "Compensating Legacy Artists for their Songs, Service & Important Contributions to Society Act"  - or (wait for it, and a a drum roll please)  the CLASSICS Act. The CLASSICS Act would rectify the obvious problems with relying on state level copyright law to establish a performing right for sound recordings,  and create the basis for a royalty to be levied from broadcasters to pay labels (and hopefully recording artistes) for pre-1972 works.  The 41 signatories including T Bone Burnett, Rosanne Cash, Kris Kristofferson, Bette Midler, Bonnie Raitt and Henry Rollins said  “Digital radio makes billions of dollars a year from airplay of music made before 1972. Yet, because of an ambiguity in state and federal copyright laws, artists and copyright owners who created that music receive nothing for the use of their work. The ‘CLASSICS Act’ would correct this inequity and finally ensure that musicians and vocalists who made those timeless songs finally get their due. We urge Congress to pass the CLASSICS Act and other pro-artist reforms quickly”.

The major national sports Leagues in Europe, including the English Premier League and Germany’s Bundesliga  have won a reprieve from the EU who have agreed to exclude them from the scope of a copyright reform that would help make content more easily available online. The entertainment and sports industries have been fiercely lobbying against the European Commission’s proposed reform of EU copyright law to make films and TV programmes more available across borders, arguing it would undermine the financing model of the whole sector. The Commission has said it is not seeking to force anyone to make content more available online, but merely to make it easier for broadcasters to obtain the necessary rights. EuroNews reports that EU member states have now to exclude all sports events, TV programmes co-produced by broadcasters and other third parties, as well as content licensed to a broadcaster by a third party.

The Electronic Frontier Foundation (EFF) has asked the Librarian of Congress to limit the legal barriers people face when they want to repair and modify software-enabled products, so that they, and not manufacturers, control the appliances, computers, toys, vehicles, and other products they own. In comments filed in Washington D.C. today, EFF continued its years-long fight to enable owners and creators to repair, modify, and enhance products, or use snippets of films or songs, free of onerous threats that doing so somehow infringes companies' copyrights. Software-enabled devices and Internet-connected products and appliances are ubiquitous in modern life, and people aren't infringing anyone's copyright when, for example, they choose to permanently disable the embedded, on-all-the-time camera or microphone in their kids' toys, or send their car to their favorite mechanic, rather than high-priced dealerships, to be repaired. “It’s absurd that a law intended to protect copyrighted works is misused instead to prevent people from taking apart or modifying the things they own, inhibit scientists and researches from investigating safety features or security enhancements, and block artists and educators from using snippets of film in noncommercial ways," said EFF Legal Director Corynne McSherry. "The exemption process is one highly flawed way of alleviating that burden."

Facebook has announced that it removed nearly 3 million posts, including videos, ads and other forms of content, from its services during the first half of 2017 following complaints of counterfeiting and copyright and trademark infringement. Aggregate data shows Facebook received about 377,400 complaints from January through June, with many referencing multiple posts. About 60 percent of the reports related to suspected copyright violations on Facebook.

The National Copyright Administration of China (NCAC) has announced that during the 2017 Sword Campaign 1,655 infringing websites were shut down, 274,800 infringing links were deleted and 314 enforcement cases were dealt with (of which 37 transferred for criminal investigation). The Sword Campaign is a flagship initiative led by NCAC in partnership with other Chinese government departments and enforcement agencies. Meanwhile, NCAC released a list of the top 16 copyright enforcement cases for 2017. The leading case on the list was enforcement against the piracy service Youyueyingchuang Technology Ltd. by Beijing Municipal Cultural Enforcement Division (CED). The resulting enforcement action removed the service and imposed a fine of RMB400,000 (approx. £45,000). More here and here (in Chinese).

The CopyKat Strikes Back - May the Festivities be With You!

It is that time of year again folks. People are celebrating, children are overcome with excitement and everyone can't stop talking about it. All waiting for that time when we can gather round with our loved ones and watch STAR WARS!

With the launch of the latest film in the franchise, the Disney production engine has been in overdrive. This has led to a number of related interesting stories which we will share with you in this copykat alongside our regular helping of non-Star Wars related copykat content.

Star Wars lawsuits: who has Lucasfilm sued and why?

This first piece is an oldie but a goodie from late 2016. This article highlights the commercial power of Lucasfilm and Star Wars. Also it is important to point out that Star Wars, or more specifically a storm trooper helmet, was the key point of contention in the regularly cited case of Lucasfilm Ltd v Ainsworth (2011). The Supreme Court ruled in 2011 that the helmets were indeed functional props, and not sculptures for the purpose of copyright protection, meaning that that Ainsworth was free to continue manufacturing the replica outfits.

Lego Wins Its First Copyright Court Case in China Against Bela

Lego A/S, Europe’s biggest toymaker, said it won its first copyright court case in China.

The China Shantou Intermediate People’s Court has ruled that products under the name Bela, sold by two Chinese companies, infringed upon Lego’s copyrights, the building block maker said in a statement Thursday. The ruling was made in September, but the appeal window only ended last month, Lego said.

FCC Chairman Ajit Pai Faces Multiple Copyright Infringement Lawsuits — Starting With ‘Harlem Shake’

FCC chairman Ajit Pai shot a cheeky video about net neutrality on Thursday.  He now faces the possibility of multiple copyright infringement lawsuits and millions of dollars in damages. This morning, at least one copyright owner vowed to launch a major lawsuit against Pai, the Federal Communications Commission, or both. 

The video has already amassed millions of views across Facebook, YouTube, and other outlets. The video also uses iconic music from both Game of Thrones and the Star Wars franchises. Both franchises are obviously worth immense amounts of money, with Star Wars holding billions of dollars in copyright IP.

Dr. Seuss and Star Trek Mashup Comic Isn’t Fair Use After All, Judge Says

Okay this one is not strictly Star Wars, though we feel it is close enough to merit inclusion.

A judge has allowed a lawsuit to proceed against the creators of Oh, the Places You’ll Boldly Go!—a nearly page-for-page remix of the Dr. Seuss classic Oh, the Places You’ll Go! and Star Trek. This decision reverses an earlier ruling.

After receiving a new court filing, US District Judge Janis Sammartino found that ComicMix, the company behind the new work, could not so easily have the case dismissed: “Thus, after again weighing the fair use factors, the Court finds Defendants’ fair use defense fails as a matter of law,” Judge Sammartino wrote in a December 7 order.

Steam Purged of Pepe Emoticons After Creator Files Copyright Claim

If, for some godforsaken reason, you’ve been trying to collect every achievement and emoticon featuring Pepe The Awful Meme Frog on Steam, I’ve got some bad news for you: many of them are gone. Pepe images that players could earn by playing games like Fergus The Fly and, tellingly, Make America Great Again: The Trump Presidency have been replaced with a simple message: “Emoticon art currently unavailable due to DMCA takedown notice submitted on behalf of Matt Furie.”

Google, Tech Firms At Odds With Content Creators Over Australian Copyright Safe Harbour Ruling

Google and members of Australia's technology sector have urged the government to reconsider excluding them from changes to safe harbour, while the content sector has applauded the decision to not extend the copyright provisions to digital commercial entities.

The government's reforms, revealed by The Australian Financial Review last Wednesday, seek to extend safe harbour provisions to education institutions and libraries as well as the disability, archive and culture sectors.

Safe harbour provisions give immunity to service providers when users upload copyright-infringing material as long as they are taking reasonable steps to remove infringing content from their platforms.

Houston Jury Awards Energy Publisher $585,000 For Copyright Violations

A federal jury in Houston awarded $585,000 to the publisher of an energy newsletter that accused an investment house of passing around unauthorized copies of its pricey publication.

Energy Intelligence Group, the publisher of 15 newsletters for the oil and gas industry, sued Kayne Anderson Capital Advisors for sharing its five subscriptions of "Oil Daily" with others in the investment firm who did not have their own subscriptions. The jury found that the Los Angeles-based investment firm, which manages $24.5 billion in assets, was liable for copying 39 issues and determined the damages for each instance was $15,000, according to the jury verdict. The trial began Monday, and the jury reached its verdict Thursday.

US Court Dismisses Copyright Infringement Complaint Against GAIN Capital

Online trading services provider GAIN Capital Group LLC has secured a judgement in its favor on Friday, December 15, 2017, as a part of a copyright infringement case launched against it by Tibco Software Inc. Judge Edward J Davila of California Northern District Court has granted GAIN Capital’s Motion to Dismiss the claims for breach of the implied covenant of good faith and fair dealing and copyright infringement.

The Court sided with GAIN Capital, with the Judge noting that the copyright infringement claim does not distinguish between Gain Capital’s alleged use of Tibco’s software while a valid license was in effect and the alleged use of the software after the licenses expired. The copyright infringement claim was accordingly dismissed with leave to amend.

Gain Capital has also moved to dismiss the breach of the implied covenant of good faith and fair dealing claim as superfluous of the breach of contract claim. The Court agreed that the two claims are nearly identical, and the breach of implied covenant claim was accordingly dismissed with leave to amend too.

Tibco is set to file and serve an amended complaint no later than December 29, 2017.

Playerunknown On Copyright Infringement: 'There's No IP Protection In Games'

Our final story for you copyright fans today poses more of a question for discussion rather than a legal update.

Are computer games being let down by current IP legislation?

This topic is of particular importance to this writer as he is regularly finding himself explaining this sorry state of affairs to up and coming game developers. It seems that in every creative industry where money has flowed, IP protection has found a way to adapt in order to provide some security to those revenue streams. However in the case of computer games or even software, we are left in a situation where the concept of a game can be copied in its entirety, albeit with entirely different physical content, and the original creator is left with little recourse. Though the idea/expression dichotomy weighs heavy in this writers mind, there must be a compromise to be found. Without it we are left in the very poor situation described in the article: "Some amazing games pass under the radar. Then someone else takes the idea, has a marketing budget, and suddenly has a popular game because they ripped off someone else's idea. I think it's something the industry needs to look into. You're protecting the work of artists basically. Games are art for a large part, and so I think it's important they're protected."

This CopyKat by Matthew Lingard

Jurisdiction of French Courts in Matters of Copyright Infringement on the Internet

                                                                            

A recent ruling by the Paris Court of Appeals highlights French courts' approach to jurisdiction in matters of copyright infringement on the internet.

At issue was the unauthorized use of a musical work within the trailer of the Belgian version of the television show "The Voice" that was made available on the show's Facebook page.  The plaintiffs brought suit against the defendants (Belgian broadcaster RTBF La Une and the production company Endemolshine Belgium) on grounds of copyright infringement before the Paris Tribunal de grande instance.

The defendants contended that the French courts lacked jurisdiction, arguing that (i) both defendants had their head offices in Belgium, (ii) the targeted public was exclusively Belgian and (iii), that the use of the song on the Facebook page was purely accessory to the television broadcast.  They also noted that the site was geo-blocked (to Belgium).

Affirming the lower court's decision, the Court of Appeals rejected this line of reasoning and held that the mere fact that site was accessible from France was sufficient for jurisdictional purposes:

"It is established by bailiff's report dated 29 February 2016 that the trailer for the television show "The Voice" made available on the show's facebook page made fraudulent use of the the song "Badminton"; it is not disputed that this site was at that time perfectly accessible in France; although RTBF has produced a baliff's report dated 7 March 2017 showing that its internet site is geo-blocked, such report was drawn up nearly one year after that produced by plaintiffs such that it is irrelevant with respect to the impugned facts."

It will be recalled that the applicable legal principles in such matters are set forth in Section 7 (2) of EU Regulation 1215/2012 of 12 December 2012under which:

"A person domiciled in a Member State may be sued in another Member State:

(2)	in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;"

While this case raised the issue of jurisdiction in an international (albeit within the European Union) context, the approach of French courts to this issue is identical in the domestic context.

The French Supreme Court (Cour de cassation) recently handed down a decision on the basis of Section 46 of the French Code of Civil Procedure which mirrors the ruling by the Court of Appeals.  It held that accessibility in the territorial jurisdiction of the court before which the matter is brought of an internet site disseminating advertising suffices to establish jurisdiction thereof, such jurisdiction being based on the place of materialization of the alleged harm, with respect to the alleged infringement of plaintiff's copyright.

Needless to say, this approach is highly favourable to plaintiffs (who need only show accessibility of the impugned site in the chosen court's territorial jurisdiction) but is tempered to some extent by principles limiting the territorial scope of such jurisdiction with respect to damages that may be claimed (as well as, potentially, by conflict of law rules).

Link to decision by Paris Court of Appeals here

Link to decision by Cour de cassation here

Artificial Intelligence and copyright: a happy (or even possible) relationship?

After years spent discussing the IP implications of 3D printing [which the the European Parliament - JURI Committee has also tackled in this recent working paper] it seems that now the new 'hot' topic is Artificial Intelligence (AI) and its potential.

Aside from issues of citizenship, in the realm of IP one of the questions that have been asked with increasing frequency is whether and to what extent AI has the potential to replace humans, including in the creative fields.

As AI machines become increasingly autonomous, can they be regarded as 'authors' in a copyright sense and, if so, can the works they create be eligible for copyright protection? If the answer was again in the affirmative, who would own the copyright in such works?

Recent developments stand as a demonstration that answering these questions may not be something for an indefinite future.

For instance, readers with an interest in music might have had the opportunity to listen to the recently released single Hello Shadow, which is the first song extracted from the the first multi-artist music album composed with AI. 

This album was curated by Benoit Carré, head of SKYGGE, who collaborated with several musicians and performers, including - in the case of Hello Shadow - Stromae and Kiesza.

The SKYGGE project started as a research project (the Flow-Machines project, conducted at Sony Computer Science Laboratories and University Paris 6) in which scientists were looking for algorithms to capture and reproduce musical “style” [an example being Daddy’s car, a song in the style of the Beatles]. However, the novelty and huge potential of the approach triggered the attention of musicians who joined the team. 

It is clear that SKYGGE produces music thanks to AI, but there is a substantial human input. But as things have the potential to develop in the sense that AI will be able to create music entirely on its own, without any human input, will the resulting songs be protected by copyright?

The notion of 'authorship'

As I discuss more at length in this recent short article for the Journal of Intellectual Property Law & Practice here, at the international level there is no definition of who is to be regarded as an 'author' in a copyright sense. However, legal scholarship seems oriented in the sense of concluding that, from its text and historical context, under the Berne Convention only natural persons who created the work can be regarded as authors. 

In any case, although generally speaking it seems possible “to agree that an author is a human being who exercises subjective judgment in composing the work and who controls its execution”, this does not mean that at the national level there are not situations in which also works created by non-human authors can qualify for protection, or courts have not addressed issues of non-human authorship. 

New potential Monkey Selfie case

In the UK context [for the US, it is interesting to look at the text of the Monkey Selfie first instance decision], for instance, examples of the former include the fictions of authorship in section 9(2) of the UK Copyright, Designs and Patents Act 1988 and, even more evidently, the provision in section 9(3) therein, according to which – in the case of a literary, dramatic, musical or artistic work which is computer-generated – the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

At the EU level – with the exception of cinematographic and audiovisual works, computer programs and databases – copyright directives do not really address the issue whether only human beings can be regarded as authors. This said, however, the Term Directive (Recital) 14 refers the calculation of the term of protection of copyright to the life of authors as “physical persons”.

The question that arises under EU law is, therefore, whether – with the exclusion of cinematographic and audiovisual works, computer programs and databases – Member States can protect works created by non-human authors.

The answer may be in the negative, if we consider how the other requirement for copyright protection, ie originality, has been intended by the Court of Justice of the European Union (CJEU).

Originality under EU law

Harmonization of the standard of originality at the EU level has been limited. Only the Software Directive (Article 1(3)), the Database Directive (Article 3(1)) and the Term Directive (Article 6) provide that, respectively, for computer programs, databases and photographs copyright protection shall be only available if they are their “author’s own intellectual creation”.

Until the landmark 2009 decision in Infopaq, it was believed that for works other than those for which harmonization of the originality standard had explicitly occurred EU Member States remained free to define the conditions of copyright protection under their own legal regimes. In that judgment the CJEU took the (rather radical) view that this would not be the case, and that also for works protected under the InfoSoc Directive the same standard of originality as in the Software, Database and Term Directives should apply.

The reason, according to the CJEU, is that the Berne Convention (notably Article 2(5) and (8)) presupposes that protection is available to works that are intellectual creations, and this is the standard also envisaged under the Software, Database and Term Directive. According to the court, the InfoSoc Directive is based on the principle that a work is protected if it is its author’s own intellectual creation. This is evidenced by Recitals 4, 9 to 11 and 20 in the preamble thereto. Hence, also under the InfoSoc Directive the standard of originality is that of ‘author’ own intellectual creation’.

The CJEU elaborated on the notion of ‘author’s own intellectual creation’ in subsequent case law. When discussing copyright protection in graphic user interfaces (C-393/09), the court held that the standard of originality requires that the author expresses “his creativity in an original manner”. In Football Association Premier League, C-403/08 and C-429/08 the court clarified that originality as author’s own intellectual creation requires exerting “creative freedom”, ie something that football matches – being subject to the rules of the game – do not possess. 

The CJEU refined further its construction of the standard of protection in its subsequent decision in Painer, C-145/10. In discussing originality for photographs and, in particular, portrait photographs, the court held that what is required is for the author “to express his creative abilities in the production of the work by making free and creative choices”, so that he “can stamp the work created with his ‘personal touch’”. 

It is therefore apparent that the EU standard of originality, as also acknowledged by Advocate General Mengozzi in his Opinion in Football Dataco, C-604/10 entails a “‘creative’ aspect, and it is not sufficient that the creation of [the work] required labour and skill.”

Can an AI machine's creation fulfill the requirement of originality as intended by the CJEU?

Pinocchio,
arguably one of the first AI machines children
(here)

In addition

Another argument against the proposition that also non-human authors can be regarded as potentially eligible for copyright protection in their works is that, at the EU level, the general rule is that concepts used in different directives must in principle have the same meaning. So, in Football Association Premier League, C-403/08 and C-429/08, the CJEU clarified that if a directive in based on rules and principles already laid down in other directives, “given the requirements of unity of the European Union legal order and its coherence, the concepts used by that body of directives must have the same meaning, unless the European Union legislature has, in a specific legislative context, expressed a different intention.”

In the case of the InfoSoc Directive (as well as the Term Directive, with specific regard to photographs) this might mean that, similarly to what is instead expressly stated Software Directive, the concept of author implies that this is a human being. This is because, as the CJEU clarified in Infopaq, C-5/08, the InfoSoc Directive, as well as the Term Directive, is based – inter alia – on the same principles and rules laid down in the Software Directive.

A further argument in favour of the conclusion that under EU copyright directive only human beings can be recognized as authors descends from the reading of its various provisions. In particular, the InfoSoc Directive vests authors with the right to authorize third parties to make acts of reproduction (Article 2a), communication to the public (Article 3(1)), and distribution (Article 4(1)) of their works. 

One may wonder how a non-human author can exercise such rights. The question becomes even more complex, if not impossible to solve, if one considers that the CJEU has clarified that the language of that directive imposes that authors are considered as the exclusive first owners of economic rights [Reprobel; Soulier].

Ted

Conclusion

From the discussion above it emerges that, with limited exceptions, legislation is generally silent regarding the question whether copyright can vest in works authored by non-humans. However, a broader reading of legislative texts – including at the international, regional and national levels – suggests that the notion of authorship for the sake of copyright protection is generally reserved to human beings.

For years, literature and cinema have raised the question of what a human is: from the wooden puppet who wishes to become a child in Pinocchio to the robot-butler in The Bicentennial Man, from the male prostitute Mecha in A.I. Artificial Intelligence to the outrageous and recreational drugs-loving teddy bear in Ted, the public has been exposed – more or less lightheartedly – to questions surrounding the meaning of ‘human’. 

Now such issues might re-surface with increasing frequency and relevance also in the area of copyright and, in doing so, test the scope of protection. This will require revisiting concepts that traditionally have been considered basic. 

However, similarly to the case of originality, it has become clear that what ‘basic’ refers to may not be entirely straightforward.

Having the X Factor: TV formats can be protected by copyright if they have clearly identified features distinguishing them from similar types of shows

Paul Musa

A few weeks ago the High Court of England and Wales issued an important decision [discussed on IPKat here] which, after a long time of uncertainty, has confirmed that TV formats are in principle eligible for copyright protection under UK law.

The case is Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch) (19 October 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 achieve a minimum standard. This standard is that they must have: (i) a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form. However, Minute Winner could not meet this standard because it was unclear and lacking in specificity.

To give readers a bit more context, this was a case management conference that was brought before the High Court. One of the main issues that the court discussed was whether copyright protection could subsist in a TV format, within the meaning of sections 1(1)(a) and 3(1) of the Copyright Designs and Patents Act 1988 (CDPA).

Background

An action was brought by Banner Universal Motion Pictures (BUMP) which had been assigned the rights to “Minute Winner”. This was a format developed in 2003 by a Danish citizen called Derek Banner.

On 11 November 2005, Mr Banner met with the two principals from Friday TV in Stockholm. He alleged that he gave them non-disclosure agreements (NDAs) to sign regarding Minute Winner and several other TV formats. As well as that, he mentioned the catchphrase “you have a minute to win it”. This was disputed by the two principals of Friday TV. They argued that other proposed TV formats, that did not include Minute Winner, were instead discussed at this meeting. It is important to note that the two principals refused to sign the NDAs and Mr Banner accepted this.

Ten days after the meeting Mr Banner emailed one of them and attached ten more of their formats.

In 2009, Friday TV’s holding company was acquired by Shine Limited. Later that year, Friday TV sold the idea for a new game show to Realand Productions LLC, a part of NBC Universal Group.

The show was going to be one in which a contestant could win $5 million by completing ten games in a row in a studio. In 2008, the name for that show was Take the Money and Run. This changed to Perfect 10 then to Don’t Blow It and then finally to Minute to Win it in December 2009. This show first aired in the US in 2010 and was subsequently broadcasted in the UK in 2011. Mr Banner became aware of this in September 2011 and commenced an action against Friday TV in the Stockholm District Court for infringing section 6 of the Swedish Trade Secrets Act.

His claim failed and resulted in BUMP then bringing a claim in England. In relation to the copyright claim, they argued that copyright subsists in the Minute Winner Document as an original dramatic work, within the meaning of sections 1(1)(a) and 3(1) of the CDPA.

The allegedly infringing TV gameshow

What the High Court said

To begin with, Snowden J stated that, for a TV format to be granted copyright protection, it must be an original dramatic work. In regards to originality, the work must be the author’s own intellectual creation (Infopaq; SAS). However, this does not mean that every aspect of the work must be original. The work must be taken as a whole and it can include aspects that are neither novel nor ingenious.

Due to the CDPA not defining what a dramatic work is, Snowden J applied Nourse LJ’s definition of a dramatic work (Norowzian v Arks Limited (No 2) [2000] EMLR 67 at 73). Nourse LJ defined it as "a work of action, with or without words or music, which is capable of being performed before an audience”. Snowden J’s conclusion was based on Nourse LJ’s definition: each recorded episode of a TV format can qualify for copyright protection, as copyright would be infringed if another party re-enacted it. However, he stressed that this case instead concerns whether a format is separately capable of copyright protection.

Snowden J analysed the reasoning of the judges in a seminal Privy Council decision on TV formats, that was outside of this jurisdiction (Green v Broadcasting Corporation of New Zealand [1989] RPC 700). This case is relevant to the UK because New Zealand has a similar closed-list system to the UK. Therefore, the reasoning of the majority can be seen to be reflective of the UK’s reluctance to grant protection in TV formats. Somers J, who was part of the majority, held that such scripts as existed could not be a dramatic work because they could not be acted or performed, being "no more than a general scheme for a proposed entertainment".

Snowden J reformulated Gallen J’s dissenting judgment in Green. He stated that copyright protection will not subsist unless, as a minimum: (i) there is a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.

However, in applying such criteria to this case Snowden J held that there was no realistic prospect of the Minute Winner document qualifying for protection. Snowden J highlighted that the performance of a task against the clock to win a prize was a common feature of games shows. As well as that the Minute Winner document did not specify key information such as the type of one minute tasks, who the contestants should be or the length of the programme.

Snowden J also highlighted that even if BUMP could establish copyright in its Minute Winner document, the format described in the Minute Winner document and that used in Minute to Win It were "different in every material respect". Thus meaning, that there was no similarity beyond the fact that they both involved games played against the clock for one minute.

Green, or the Opportunity Knocks case

Implications of the ruling

This case is of great significance to the media industry and highlights the dangers of sharing ideas in a commercial environment, without copyright or contractual protection. It is imperative that television producers and those with rights to TV formats, ensure that they have robust non-disclosure agreements and that third parties sign them. This is likely to be an easier route to enforcing one’s own rights, as opposed to bringing a claim for copyright infringement and needing to satisfy the requirements stated by Snowden J.

In order to increase the chances of their TV format being afforded protection by copyright, TV producers and broadcasters ought to include information such as where the action is to take place, who the contestants should be, the selection process, the length of the programme, when the show should be aired, the source of the prizes and catchphrases. It is vital that TV producers and rights holders keep a constant and regularly updated account of this information. In doing so they will have a better chance than Mr Banner and BUMP, in meeting the minimum criteria set out in Snowden J's judgment.

However, the decision is dangerous for how UK copyright is defined. This is because TV formats as copyright subject-matter are dangerously on the verge of the idea side of the idea/expression dichotomy. A difficulty in deciding these cases is distinguishing between whether what has been copied is the expression of ideas, rather than pure ideas themselves. It appears that TV format producers like the claimant, bring these claims to protect the latter from being copied. However, these claims are outside the remit of copyright protection.

Whilst Snowden J correctly decided against granting copyright in Minute Winner, because a party cannot claim a monopoly on games being played against the clock for one minute, it cannot be said that other judges in the future will correctly do so as well. Copyright does not grant monopoly rights and therefore, there is certainly potential for things to get out of control if judges begin to grant monopoly rights in TV formats. These practical concerns are a contributing factor as to why the UK has been hesitant, to freely grant copyright protection to less conventional works, like TV formats.”