Copyright Law Changes

“The introduction of a technological process, the printing press, led to the development of the law of copyright”. These “new technological developments involving access to copyright material impose pressures on the copyright legislation”. “Many new technological developments are capable of being used to infringe copyright that is why this led to changes in copyright law”.

“Over last 30 years cases brought by copyright owners or holders against the manufacturers and suppliers of technology which has the potential to infringe copyright are examined”. That is why “in a response to this technological development, the UK passes the Copyright, Designs and Patents Act 1998”.

This essay will examine whether copyright can prevent the copying of a general idea/expression in relation to TV formats.

“Fundamentally, copyright law exist to prevent others from taking unfair advantage of a person’s creative efforts”. “Copyright is a property right that subsist in certain specified types of works as provided by the Copyright, Designs and Patents Act 1998”. “The owner of the copyright work has the exclusive right to do certain acts in relation to the work”. “If a person performs one of the acts restricted by copyright without the permission or licence of the copyright owner, the latter can sue for infringement of his copyright and obtain remedies”.

The first modern copyright legislation was the Copyright Act 1710 and only granted protection to books but with the technological development over the years new types of intellectual property arose such as photographs, sound recording, films, etc that needed to be protected so new copyright legislation was enacted.

They are 4 vital elements in copyright law: What works are protected? What acts are they protected against? Who is entitled to protection? How long the protection lasts? .

The UK, in order to protect this list of works enacted the Copyright, Designs and Patents Act 1998 which section 1(1) of the Act states the requirements of the list of works subject to copyright as 1)original literacy, dramatic, musical or artistic works, 2)sound recordings, films or broadcasts and 3)the typographical arrangement of published edition.

The person who is entitled to copyright protection is the author of a LDMA; the person who creates the work. The duration of this protection for LDMA and films is the life of the author plus 70 years but there are still different terms for different types of works.

Moreover according to the Copyright, Designs and Patents Act 1998 all LDMA must be an ‘original’ work. The basic idea is that in order for a work to be original it must be originated from the author himself and not copied from someone else.

“One thing the courts have recognised as indicating that a work is original is the presence of labour, skill and Judgement in its creation”. “Originality is present if there has been the exercise of a sufficient degree (small degree) of labour, skill, judgement and knowledge in the production of the relevant work”. A case that illustrates what the courts have recognised is the case of Ladbroke. In this case Ladbroke a football betting agency copied the forms of Wm. Hills coupons. Hills’ 15 betting lists had almost the same types of bet as the 15 out of Ladbroke’s 16 betting lists. In court, Ladbroke claimed that Hill’s betting lists were not original. The court held that the betting lists were original because they had sufficient skill, labour and judgment. The judge stated that the skill; selecting attractive bets counted and not just the minimal labour of completing the lists.

Furthermore, we have to explain the idea and expression dichotomy. “Courts have traditionally declined to put forth a straitjacket definition for the term idea. An idea has been described as a thought, as a mental image, as a conception of a theory. In layman terms, an idea can thus be described as a formulation of thought on a particular subject while expression would constitute implementing the said idea”.

“The idea-expression dichotomy was originally formulated to ensure that the manifestation of an idea is protected rather than the idea itself. Created with the intention of stimulating creativity while at the same time ensuring that such creativity is protected”.

According to WIPO Copyright Treaty 1996 Art 2 “Copyright does not protect ideas, facts, news or information, but only the expression of such ideas” that is an internationally recognised principle of copyright law which was established under a framework of international Treaties and Conventions with the intention of harmonising copyright law in the world.

Under the United States (US) Copyright Law, the idea/expression dichotomy originated from the case of Baker. “In this case, the plaintiff owned copyright in a series of books that explained a bookkeeping system annexed with certain forms consisting of ruled lines and headings, illustrating this system. The defendant was accused of copyright infringement, because it made and used account books arranged on substantially the same system, employing forms with slightly different columns and headings. In ruling in favour of the defendant, the Supreme Court held that there is a clear distinction between the books, as such, and the art, which they intended to illustrate. The description of the art in a book (the expression in the instant case), though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art (the idea) itself”. From this case we can clearly see that the idea and the expression of that idea are 2 different things.

Under the United Kingdom Law the Courts prior to 1911 “adopted the principle that an idea is not subject to copyright protection and that it is only the expressed form of such idea that is subject to such protection”.

“The task of the Court is to apply the contents of the Act while determining a violation of a copyright and the Act does not mention or take into account the existence of an idea/expression dichotomy. The Act stipulates the content that is protected as an original work and that such work may be infringed by the taking of a substantial part”. So “the principle of idea/expression dichotomy would appear to be identical to that of United States law, but there is a subtle difference in the manner by which UK Courts have diversified the concept”.

Furthermore after 1911 when the Copyrights Act was passed , “Courts have declared that ideas, thoughts and plans existing in a man’s brain are not ‘works’ as defined by the Copyright Act. But once reduced into writing or other material, such ideas through their material form, may be susceptible to copyright protection”.

“Modern case law indicating that even an expression of an idea itself does not remain unprotected. Similarly case law indicates that even sole and inseparable methods of expression can be subject to copyright”.

“Courts have determined the correct procedure that is followed while deciding cases involving the idea/expression dichotomy. Although a general idea cannot be copyrighted, instances where the labour involved in expressing such an idea in detail in the form of drawings, writing etc have been adopted, are held to be cases of copyright infringement”.

“Such cases involve the copying of the detailed expression of the idea and not the idea itself. The originality that is required, and through it the protection conferred are related directly to the expression of thought involved in creating the work. This principle has been applied and affirmed by a plethora of decisions that have applied it specifically in relation to the facts involved”.

A case that illustrates the above is Ibcos. In this case the court “proposed to examine the case by determining logically the claim in copyright calls to be tested. For this purpose the Court had to consider whether the software in question contained the element of originality. While considering the idea/expression dichotomy issue that arose in connection with the whole package being a copyright compilation (i.e. the question of originality), the Court disagreed with a former ruling which held that an only method of expressing an idea is not the subject of copyright. The Court stated that it was of course true that a copyright cannot protect any sort of general principle, but it can protect a detailed literary or artistic expression”.

The court “did not ignore the utility of the idea/expression dichotomy and its application in the United States, stating that if the defendant has merely copied a general idea then it is immaterial whether there is copyright in the plaintiff’s work. Thus the Court stated that the principle of law applied in the United States was different to that applied in the United Kingdom and this difference was particularly visible in relation to copyright works concerned with functionality and of compilations. Thus, the Court found it appropriate to examine the structure of the computer program as a whole in light of it being a copyright work in addition to the literal bits of code and the program structure within the program. The Court stated that as the component programs and structures are individually subject to copyright as sufficient skill, effort and judgement went into their design”.

“The ruling in Ibcos turned out to be a landmark judgement under United Kingdom Copyright law. Not only did the Court classify and explain in a lucid manner, the extent of applicability of the idea/expression dichotomy in U.K. law, it also contradicted and set right a number of judicial decisions (predominantly citing United States law as an example) which proposed theories contrary to the Courts ruling in the present case”.

Another case that is related to the above is Kenrick. In this case the “plaintiffs were a firm of printers. J., a member of the firm, conceived the idea of printing and publishing cards bearing a representation of a hand holding a pencil in the act of completing a cross within a square, with a view to such cards being used at parliamentary and other elections for the guidance and instruction of illiterate voters in the marking of their ballot papers”.

“The defendant has published a similar card, with a hand in a slightly different position, also holding a pencil in the act of finishing a cross upon the proper spot in a voting paper, and I have no doubt that he took the suggestion from the plaintiffs’ card. The plaintiffs complain of this as an infringement of their copyright under the Act”. The court held that despite there was very little skill, labour and judgement on defendants card only an exact copy of the plaintiff’s card would constitute an infringement “since he had to balance the public and private interest in the idea-expression issue”.

Moreover the technological developments have brought copyright law inside the entertainment industry such as game and chat shows, serials, soap operas, film and television sequels and “these works are based on what might be called fixed formats”.

Format is “a style plan or arrangement, as of a television programme”. “A format for a TV programme is a combination of elements such as idea, game rules, script, settings, graphics, storyline, etc”.

“A dramatic work it is a work of action which is capable of being performed before an audience. Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorder, in writing or otherwise.”

In order to have a copyright protection in a TV format is the “author’s creative skill and labour, and a producer’s money are spent in selecting, arranging, inventing and modifying the title, sequences of events, catchphrases, settings and characterisations of the format. These important elements in a format are arguably as developed as those in traditional dramatic or literary works, and should be equally protectable”. In the case of Norowzian “was instructive on whether or not a cinematographic work can be a dramatic work for the purposes of copyright protection. Although the Court confirmed that it could be protected both as a film and as a dramatic work, it stated unequivocally that no copyright subsists in mere style or technique, even when such techniques may be innovative or a major feature of the film’s uniqueness”. This case helps “the entertainment industry in the sense that it affirms that a cinematographic work can be a dramatic work”.

The fact is that in UK, TV formats are not recognised as copyright work so there have been many disputes in courts in several cases such as Green.

Green is the “starting point when looking at the licence of format rights”. In this case “Hughie Green tried to prevent the Broadcasting Corporation of New Zealand from using an adaptation of the talent show Opportunity Knocks by claiming that copyright existed in the dramatic format of the show. In particular, the show included a number of elements such as “make your mind up time” (when votes were cast) and the “Clapometer” that gauged audience reactions to performances”.

“The Privy Council held that the format of the talent show was not capable of copyright protection, even though some elements were repeated in each show, as the separate elements did not sufficiently combine together to form a unified dramatic work which was capable of protection”. Green “argues that there is no reason in principle why a TV show format should not be protected as a dramatic work if a record of how the show is presented is kept, detailing the scripted spoken elements, directions for what participants should do at the different stages of the show and staging, lighting and sound effects to be use”.

The court state 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 accept as accessories to be used in the presentation of some other dramatic or musical performance, lack that essential characteristic” in this case.

“The Privy Council reaffirmed the general principle in English law that there is no copyright in an idea and established that there could be no copyright in the format of this game show” because Green was unable to show any written scripts for the show. The scripts “did not themselves do more than express a general idea or concept for a talent quest and hence were not the subject of copyright protection”.

Moreover formats have a commercial value. “In April 2000, industry figures from across the globe met in Cannes to debate the creation of an international industry body to combat television format piracy.  The group agreed that action was necessary and endorsed the idea of FRAPA, the Format Recognition and Protection Association”.  “FRAPA is the international format industry association dedicated to the protection of formats” and its aim is to “ensure that television formats are respected by the industry and protects by law as intellectual property”.

Furthermore the United States courts follow a stricter approach to cases of TV formats than the UK courts. “It is arguable whether or not US Law recognises that there could be copyright in a reality TV program and that if that is possible, the courts would be very reluctant to hold that a particular show was a copy of another”. Under US law the “granting of copyright protection to something called format would lead to further problems of infringement and extent of protection”. A case that illustrates this is CBS. In this case “the broadcaster of Survivor, CBS, tried to prevent ABC from televising a rival show, I’ m a Celebrity … Get Me Out of Here! on the basis that both shows had common features”. “The case was thrown out on the basis that there were several distinctive elements to both shows and the overall tone of the two shows was significantly different”.

The judge stated that “as a means of balancing the rights of format owners against these wider policy concerns, particular significance will be attributed to the distinctions that might exist between two formats in determining whether an infringement has occurred”. “In rejecting the copyright infringement claim in this case, Judge Preska followed an existing standard which states that where a copyright work is comprised of an original combination of unoriginal elements, as is the tendency with many modern formats, protection will not extend further than to restrict against the identical reproduction of the elements forming the original work in another work”.

Furthermore, there is the alternative method of protecting TV formats; that of passing off. The formulation of passing off arises from the case of Reckitt. In this case Lord Oliver state that 1)“ The claimant must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying ‘get up’ 2) He must demonstrate a misrepresentation by the defendant to the public ( whether or not intentional ) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff and 3) he must demonstrate that he suffers or that he is likely to suffer damage by reason of the erroneous belief engendered by the defendants misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the plaintiff”.

In addition “is becoming increasingly common to register the titles of television shows as registered trademarks in order to acquire exclusive rights to the show’s title. Registered trademarks are essentially national in character (the Community Trade Mark is the obvious exception) and protection in the international market place would have to be obtained on a country by country basis which may be an expensive option for format owners who may not be sure if their formats will be adopted” but “registered trade marks on their own cannot protect the “look and feel” of a format”.

Moreover, in order to have confidential information the format must not be publicized. A case that illustrates this is Fraser. Once the information of the format is publicized the protection no longer exists. “The information must be protected and it must have been obtained by the defendant in circumstances in which a duty of good faith will be imposed and there must be an act which is in breach of that duty of good faith”.

To conclude, TV format rights “need more care and attention than they have previously been accorded. The present uncertainties in the law relating to the protection of format works put the entertainment industry at a serious commercial disadvantage. The manner in which intellectual property law is applied to format works raises serious questions of commercial morality and substance”. There should be a way to give protection “to the creators of an original television format while leaving sufficient room for the free development of television programs based on existing general themes or ideas”.

BIBLIOGRAFY

Cases

• • Ladbroke(Football) v William Hill(Football) Ltd [1964] 1 All ER 465
  • Baker v Selden 01 US 99 (1880)
  • Fraser v Thames Television Ltd [1984] QB 44.
  • Reckitt & Colman Products Ltd v Borden Inc [1990] RPC 341 (HL).
  • CBS Broadcasting Inc v ABC Inc(2003) 02 Civ. 8813
  • Green v Broadcasting Corpn. Of New Zealand[1989] RPC 469
  • Norowzian v Arks [1998] FSR 349
  • Kenrick & Co. v Lawrence & Co (1980) L.R. 25 Q.B.D. 99
  • Ibcos Computer Ltd v Barclays Finance Ltd (1994) FSR 275.

Books:

• • David I. Bainbridge, Intellectual Property (6^th edition Pearson Education, London 2007)
  • J. Coyle, Copyright Law Workbook (Leeds Law School,2007)
  • Copyright Law Lecture Slides, Originality

Acts:

• • Sculpture Copyright Act 1842
  • Fine Arts Copyright Act 1862
  • Copyright Act 1911
  • Copyright Act 1956
  • Copyright, Designs and Patents Act 1998

Journals:

• • Jackson and Shelly, “Black Hats and White Hats :Authorisation of Copyright Infringement in Australia and the United States”(2006) I.J.L. & I.T. 14(1), 28-46
  • Rose, “Format rights: a never-ending drama(or not) (1999) Ent. L.R.10(6),170-174
  • Lane and Bridge, “The protection of formats under English law” Part 2 (1990) Ent. L.R. 1(4),131-142
  • Hinton, Can i protect my TV format? (2006) Ent. L.R. 17(3),91-93
  • March, “ The X and make up factor: the “Fuller v Cowell” dispute( 2005) Comms. L. 10(6), 219- 223
  • Harbottle & Lewis LLP “ The format factor: television format rights (2006)
  • Lane and Bridge, “The protection of formats under English law” (1990) Ent. L.R. 1(3), 96-102.
  • Abinava Sankar & Nikhil L.R. Chary “THE IDEA – EXPRESSION DICHOTOMY:INDIANIZING AN INTERNATIONAL DEBATE” Journal of International Commercial Law and Technology Volume 3 Issue 2 (2008)
  • Edward Samuels “THE IDEA-EXPRESSION DICHOTOMY IN COPYRIGHT LAW” 56 Tenn. L. Rev. 321 (1989).

Websites:

• • FRAPA(Format Recognition and Protection Association) “ The global trade in television formats” < http://www.frapa.org/>