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WIPO to mediate on TV format disputes

Trade body the World Intellectual Property Organisation (WIPO) will mediate in what it says are frequent disputes over the rights to television formats. It will mediate disputes based on its existing film and media arbitration rules.12 Apr 2010

TV formats have become a major part of the broadcast industry, generating billions of dollars worldwide in income from advertising and participation fees, such as those for premium rate voting phone lines.

The industry is a major earner for British TV producers. Academics at Bournemouth University recently estimated that in the last 10 years UK producers have accounted for between 20% and 50% of all format hours broadcast worldwide.

WIPO already operates a widely-used dispute resolution procedure for domain names, and is extending its work to TV formats in conjunction with the existing Format Recognition and Protection Association (FRPA).

WIPO said that mediation was necessary because of plagiarism and unauthorised format copying in the industry.

"While the format industry is flourishing and the trade in TV formats is growing, the industry is characterized by fierce competition and frequent disputes," said a WIPO statement. "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."

"Delays, costs and burdens of litigation can be damaging," said Ute Biernat, chairman of FRAPA. "This is why alternative dispute resolution such as mediation and arbitration, can help format owners, producers and broadcasters resolve their disputes out of court in a more flexible, confidential and efficient way that can also preserve their business relationships.”

TV formats are the structures that programmes such as talent contests, game shows or even some chat shows follow. They are developed by broadcasters or production companies, which retain rights to elements of the format, such as the name or the music associated with it.

Not all aspects of formats are protectable by formal intellectual property rights, though, and according to the Bournemouth academics, producers' rights are often defended more informally.

Professor Martin Kretschmer of Bournemouth University led a team which conducted a study last year of the TV format business. He recently told technology law podcast OUT-LAW Radio that a UK court had established that formats were not fully protected.

"In the UK the lead case is a 1989 decision by the Privy Council and it involves Hughie Green who was one of the most popular presenters on UK television on the game show Opportunity Knocks, and in that decision the Privy Council held that the format and structure on the package of the game show were insufficiently united to be capable of a performance so copyright law did not protect the loose language, the ideas behind the programme," he said.

"Other routes of protection would be unfair competition law which has been used in civil law jurisdictions and something like passing off in the UK which involves an element of deception which is very hard to prove," said Kretschmer. "The third major action relates to confidentiality because a lot of the preliminary work relating to format will rely on negotiations in exchange of information about programme ideas and they are often covered by a non disclosure agreement."

Many producers and inventors of formats choose to rely on a combination of IP protections, such as trade mark rights, and innovation to stay ahead of potential copycats, Kretschmer said.

"[A] strategy we found was a fairly sophisticated use of brand management which combines creating an image, particularly through trade marks and logos and a range of images surrounding the program and then continuously moving the brand along so that it is very hard for competitors to catch up with the image which is embodied in the mark and the logo," he said.

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