The Reasons Why Protection of TV Formats Present Problems for UK and International Laws
Television could be important and strong electronic appliance to people depending on its programming. The use of the term television formats has been misleading, especially from an economic perspective and legal framework (Ellis, 2000). The rapid growth experienced in the broadcasting industry has led to many legal issues that could not be resolved using the old philosophies and concepts. In other words, the current legal practitioners could not rely on traditional definitions regarding literary property such as television format. Nonetheless, new laws have emerged in the broadcasting industry which allows new approaches to deal with television formats. What exactly does television format means? In most cases, Television viewer could point out different television programs formats such as, the talent shows (American Idols), the game shows (Who Wants To Be A Millionaire), the reality shows (Fear Factor), and script-based shows (Coupling). Consequently, the different definition of TV format has brought a conflict and difficulty in understanding the specific standards that could apply in most cases (Magee, 2011). In fact, in 1990, the UK attempted to provide the legal definition of TV format through the revision of the BBB (British Broadcasting Bill) (Ellis, 2000). The definition comprised of format proposal and format program. The TV formats referred to as written presentation that comprised of the series within, which the characters operate and repeatedly act to the role out the theme, setting, development of the story line and premise (Great Britain & Great Britain, 2010). Ironically, this crucial legislative endeavor collapsed due to numerous criticisms from the public terming it as “enigmatic.”
Apparently, formats are of great importance to TV industry because the expenditure that is often allocated to it. At the same time, the newly produced series provide a link in the production process. Nonetheless, Meadow (1970) cites that, formats are valuable articles and products in the entertainment industry as literary creation. However, there has not been enough legal protection to acknowledge the legitimate writers. In other words, securing the legitimate writers to enjoy the fruits of his/her labor is not guaranteed. In the UK, legislature has failed to set standard rules to protect the program format. This is because the legislature understands program formats as a single entity during format creation (Donders, Pauwels &Loisen, 2013). In addition, it is hard for the legislature to understand the comparison between TV formats and other products marketed alongside TV programs, such as Script shows (Torremans, 2011). In other words, the legislation looks at the TV formats as the end-product. Subsequently, the legislature does not understand that, end-products include different originators, characteristics, legal challenges, markets and, goals. Many legal scholars argue that, it is only the traditional laws that govern the property rights of the creators and writers (Eko, 2012). All the formats consider the following considerations: cross-shooting, the 180-degree rule, a scaled ground plan, and conventions. In addition, in UK, it is a requirement to use at least three cameras or more during production. However, in order to understand what the format is, it is important to examine the creation of the program process (Torremans, 2011). Although it is along journey, it could be separated into four stages: developing a program idea, creating the paper format, supplementing business knowledge into the creation, and airing the episode on radio or TV (Eko, 2012). Therefore, it is not worthy to concentrate on format definition under single element. This would shift the focus from the product being developed and traded. Many research shows that, formats are a combination of business, creativity and marketing elements, which are dictated by both internal and external factors (Moran, 2009). The external factors may include technology and genre while the internal factors may include targeted audience and intended audience reaction. Similarly, format is a system that involves arrangements and combination of artifact, selection of materials and selections of ideas. The relationships among the element are supposed to produce quality that strengthens the relationship. Therefore, in this paper, would analyze why the protection of format present problems for UK and international laws.
In the UK, the formulation of “idea-expressed dichotomy” was to facilitate the understanding of protection of the idea (The Federation against Copyright Theft (FCT), 2013, para.5). However, it was a principle used to harmonize the international copyright laws. In other words, the copyright laws did not protect facts, ideas, information or news. The court did not give the cut definition of expression and idea. Therefore, an idea could involve several expressions given the circumstances. It is during this time that copyright issue emerges. However, when an idea and expression integrates, it is hard to claim that, an expression has been copyrighted. In other words, copyrighting of an expression generate a monopoly of ideas of the owner (Great Britain & Great Britain, 2010). Similarly, ideas could exist where expression keeps on changing the meaning of the initial idea. As such, the whole idea changes and the court could decide to consider the stand that ideas have not been copyrighted. According to FCT (2013), the Copyright, Designs and Patent Act of 1988, gave the real meaning of a protected work which included all ideas and works other than musical work that are sung or written. However, this Act has received several criticisms, which include failure to provide better guidelines beneath its fundamental nature or metaphysical surface (Sussman & Sussman, 1986). The UK laws do not give a clear distinction between an idea and an expression both on the statutes and case laws. For example, Lord Justice Jacob cited in the case of Ibcos that, an idea lacks copyright (Alleyne, 2011). In other words, the judge recognized the principles that governs ideas and expressions, but gives a universal judgment on issues related to such cases. Perhaps, this is done to seal the fact that no legislation that fully define the laws surrounding the copyright infringement of ideas and expressions.
For decades, attempts to protect copyright infringement have been unsuccessful. This was because the courts solely embarked on scripts as a subject of infringement. In fact, the Register of Copyright in California holds that, it is not adequate to register a claim that involves copyright of an idea for a television program, motion pictures or any other work (Reed, 2001). However, this is not the position of the authorities. Actually, the copyright Act does not include such limitation. In the entertainment industry, there is a close link between paper format creation and production companies (Zettl, 2012). In fact, the production companies and networks provide professional experience and knowledge required to sort out the credible papers that meet the commercial format. In other words, they select the paper format required for the next step in the program formats. However, in this kind of setting, there exist both horizontal and vertical levels. In horizontal level, some creators attempt to affirm the format as their own work (Meadow, 1970). In vertical level it is the attempt from the producers to claim the format (Meadow, 1970). From these levels it is easier for the creators to guard the work from horizontal level through secrecy.
Nonetheless, the vertical level requires declaration, hence prone to more dangers. The numerous challenges faced by unpublished programs format in the entertainment industry have resulted to lack of protection from the government (Donders, Pauwels &Loisen, 2013). For instance, in the UK, the government has given the creators and the producers chance to negotiate and reach an agreement on how to eliminate the copyright infringement (Torremans, 2011). Although that is a good avenue towards finding a bona fide solution, the cost incurred during the process is huge. For example, considering a meeting that involves the new television show, there would be the producer’s agent, the paper format creator and arbitrator. At the beginning of the negotiation, conflict would arise. This is because it would force the creator to expose some of information related to his/her work to the producer for evaluation. On the other hand, once the creator shares the information, he/she loses the bargaining power, control, and potential compensation from the work. This arrow’s information disclosure paradox present additional information cost for both parties (Reed, 2001).
Although the U.S recognizes that format could be entitled to copyright protection just like any other work, cases involving format infringement are determined in an unacceptable way for the plaintiffs. For example, the case that involved the TV shows: Survivor vs. Celebrity-Get Me out Of Here (Magee, 2011). The broadcaster CBS proceeded against ABC alleging that, I’m a Celebrity-Get Me out Of Here copied the content from the Survivor show. The broadcaster CBS sought for an injunction against the ABS to stop the show from being aired. To the contrary, the court argued that I’m a Celebrity-Get Me Out Of Here was an original format and needed to continue playing. That is why Mr. Taylor argued that lack of international laws governing media and copyright infringement led to plain spy incidences between China and United States (Reed, 2001). In addition, Christopher Drew cited that, although the U.S administration is grounded on strong legal standing, copyright protection laws are determined by strong pentagon personalities that ignore international laws (Reed, 2001). Nevertheless, international media laws sometimes serve as a unifying factor and organizing factor for public opinion. On the other hand, the laws should respect the international journalists that cover stories and pursue the truth in them. In other words, Mr. Gutman asserts that journalists should be treated like missionaries, diplomats and humanitarians (Reed, 2001). The IHL in the quest to protect copyright infringement should enforce moral norms that enable a journalist to report situations as they see it (Meadow, 1970). For example, war against civilians in Ethiopia, Afghanistan, and Angola.
Recently in the UK, there have been claims that unauthorized copying and format piracy has been on the rise. For instance, the popular shows in UK such as, Pop Idol and the X Factor find they root in international markets (Alleyne, 2011). The situation could be worsening if international laws are inadequate to protect the creators. Nevertheless, the potential and rapid growth of media economies such as Russia, Brazil, China, and India provide adequate market for pirated formats (Esser, 2010). In fact, according to survey by PriceWaterhouseCoopers in 2011, the global television market had grown by 56% from 2006 (US$ 160.6 billion in 2006 to US$ 250.7 billion in 2011) (Esser, 2010). Actually, Donders, Pauwels and Loisen (2013) cited that, creative industry get protection from recognized international laws while the creators of the work are prone to copyright infringement and exploitation. However, for TV format, the judges and law practitioners in many cases judge TV formats as TV programs. The urge to get rich quickly by those in power has contributed to deterioration of implementing format laws appropriately. For example, in 2006, the Commission of Gower’s Review on Intellectual Property in the UK refused to give further clarification to BBC on the legal solution to protect copyright infringement of formats (Ellis, 2000). In fact, the commission responded that, the prevailing laws were adequate to provide protection and any further law review would create more complications. Apparently, the commission did not want to disappoint the authorities.
Although the International Telecommunication Union and Universal Postal Union were on the forefront to provide limited transfer of formats across the internet, the two organizations collapsed (Sussman and Susman 1986). This was after the U.S withdrew form the Union, making it weaker. More importantly, the two Unions could not regulate the message content across the internet from one country to another (Zettl, 2012). In addition, international laws did not exist to govern the mass media. The efforts made by the media activists to formulate laws that regulate the country’s media collapsed. The law proposal stated that countries that tolerate bad conduct of mass media to take responsibility for its actions (Sussman and Susman 1986). The U.S rejected the proposal claiming that, the law would violet the principles governing the mass media society (Meadow, 1970Nonetheless, the International Convention on the Use of Mass Media proposed law provisions that would bring peace among countries. The resolutions of the organization were rejected with impunity. The main reason for rejection was that, many government officials across the world did not want free spreading of information (Zettl, 2012). In fact, many states argued that it was the right of the government to determine the people to hear or see the TV programs. This argument was not only based in South Africa but also within the USSR and elsewhere in Europe.
The manipulation and significantly tempering of the article 10 of UNESCO on press control denied many countries the opportunity to attain mass media freedom (Sussman and Susman 1986). Critics argued that the article was not adequate for implementation. This was because the article contained the western legal requirement to satisfy their weaken ends. As such, it was a challenge to find complete international laws in both UK and the rest of the world to protect the TV formats. However, in mid-1984, the UNESCO considered starting another ‘protection’ discussion to persuade the super powers (U.S and USSR) to allow media freedom (Sussman and Susman 1986). In the process, the Director General M’Bow of US agreed that journalist would be left to handle the matter entirely upon them. In addition, the Director suggested that, the western media and its content would be virtually under the control of veto power (Sussman and Susman 1986). He added that, US would be responsible for publication of materials used during UNESCO conferences and send representatives. In other words, this means that whether the UK or the US remains outside the UNESCO still they have the mandate to limit the freedom of mass media.
In conclusion, the rapid growth experienced in the broadcasting industry has led to many legal issues that could not be resolved using the old philosophies and concepts. In other words, the current legal practitioners could not rely on traditional definitions regarding literary property such as, television format. For along time, it has been hard for the legislature to understand the comparison between TV formats and other products marketed alongside TV programs. As such, a standard definition of formats is hard to get. Although the Copyright, Designs and Patent Act of 1988, defines the real meaning of protected work to include all ideas and works other than musical work that are sung or written, courts give the judgment otherwise. The reasons why format present problems for protection in international laws and UK is because of the potential and rapid growth of media economies such as Russia, Brazil, China, and India provide adequate market for pirated formats. In addition, the super powers such as U.S and USSR require that, the government to determine the people to hear or see the TV programs. However, organizations such as UNESCO, International Convention on the Use of Mass Media, and International Telecommunication Union are on the trend to bring back the media sanity.
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