By Wanjiku Karanja**
Intellectual Property (IP) scholars Kal Raustiala and Christopher Sprigman coined the term “Intellectual Property’s Negative Space” as encompassing any “substantial area of creativity” in which IP laws do not penetrate or provide only very limited protection. This concept is premised on art’s negative space, which refers to the area surrounding a figure that makes it stand out: the background against which an object exists.
In art, the negative space is as important as the “positive space” as it it defines the artwork’s subject, and brings balance to a composition. IP negative spaces can be looked at in the same way, as a better understanding of IP law can be gleaned through an analysis of the spaces in which innovation thrives in absence of IP protection.
Creative products such as perfumes, jokes, chefs’ dishes, street and graffiti art, garments and TV formats, often dwell in copyright law’s ‘negative space’ either because copyright law doesn’t apply to them or because it tends not to be exercised in relation to them. Innovation nonetheless proceeds in these arenas as social and or economic norms’ function in the stead of copyright law. The question that then arises is: what is the appropriate policy response to these norms? This blogpost, though an analysis of the IP negative space in Television (TV) formats shall attempt to answer this question.
A TV Format is the overall concept/formula of a TV Program. It is the base from which the program’s episodes are developed. As a result, its content, structure and presentation exhibit certain elements that are seen throughout the season/series. It therefore refers to the TV program’s general shape rather its genre. For example the popular series ‘Modern Family’ belongs to the sitcom genre while its format is the “mockumentary” style in which its episodes are presented.
The most common type of TV formats are those in the game and reality show genres, many of which are remade in multiple markets with local contestants. This includes shows such as Shark Tank and Dragons’ Den, Big Brother, Survivor, Who Wants to be a Millionaire, The Voice etc. TV formats are licensed by TV networks to production companies or broadcasters for local adaptation ensuring that the shows are tailored towards the licensee’s audience cultural preferences. For example local versions of ‘Idol & ‘Who wants to be a millionaire’ have aired in 42 and 108 territories respectively.
International TV format trade i.e. the selling and purchasing of TV format licenses between an exporting licensor and importing licensee is therefore very lucrative. Endemol, a Dutch media company that produces and distributes multiplatform entertainment content (most notably Big Brother) has immense global presence i.e. in USA, UK, India, Australia and South Africa. The legal protection of TV formats is therefore extremely important in light of their immense commercial value.
Copyright law does not however protect TV Formats. This stems from copyright law’s Idea/Expression Dichotomy i.e. copyright does not protect an idea but protects the expression of an idea.Courts have traditionally taken the view that television formats, are simply ‘ideas’ and are, as such, not copyrightable. Television formats are therefore vulnerable to plagiarism.
The leading court case in this area is Green v Broadcasting Corporation of New Zealand (the Opportunity Knocks Case). This case involves ‘Opportunity Knocks’, a television talent show which aired on British television devised, written and presented by the Plaintiff. Unbeknownst to the Plaintiff, the Defendant broadcast their own talent contest, also called ‘Opportunity Knocks’ which featured the Plaintiff’s distinctive “clapometer”, which measured audience applause, and used his catchphrase: “For Mr./Ms. X, ‘Opportunity Knocks’, This is your show folks and I do mean you”.
The features of ‘Opportunity Knocks’, however, were found to be “unrelated to each other except as accessories to be used in the presentation of some other dramatic or musical performance” and therefore did not meet that essential characteristic of a dramatic work as having sufficient unity to be capable of performance. Gallen J. however disagreed on this issue stating that the title, the catch phrases, the use of sponsors and the “clapometer” established a ‘recognizable framework’ for Plaintiff’s show, which justified copyright protection as a dramatic work. The Court however ultimately held that there was “insufficient certainty in the Plaintiff’s format” for it to qualify as a dramatic work capable of copyright protection.
In spite of the above, the fact remains that international TV format trade continues to thrive in the absence of copyright law protection. The question at this juncture is therefore what protection subsists the Negative IP Space in TV formats? TV format developers use the following strategies to protect, control and exploit their formats globally.
Firstly, they transact in production bibles i.e.a package of the know-how built up in a format including the TV show’s name, logo, music, catch-phrases, software et cetera. The licensee therefore buys the format rights together with the expertise required in producing the program.In this sense, the protection of TV formats by copyright law may actually be disadvantageous to innovation as it could result in the creation of monopolies over certain genres of entertainment.
Secondly, they leverage on their vast distribution networks for example through the use of information providers (spotters) in key territories globally to detect new and exciting formats whose licenses they may wish to purchase as well as to identify format copying. Companies with production bases in key territories are able to role out their program to the global market before any potential copycat.
Thirdly, they rely on on brand management tactics such as registration of trademarks in protecting their brands and developing their merchandise so as amp audience interest in the on-air product.Some developers also rely on unfair competition such as “passing off” actions to restrain their format from being used by an unauthorized third party.Further, contract law has also been used to nurture TV show’s brand by preventing individuals from participating in and sharing the know-how with rival copycat shows.
Additionally, the TV formats’ industry’s “flying producer” system whereby a network of flying producers police the recreation of formats in new markets by ensuring that they retain the original format’s values and systems. These producers input is valuable due to the unique knowledge they have gained in producing previous versions of a TV show in a plethora of markets. This helps preserve the show’s production quality and ensures that the recreated format is a success.
Lastly, the use of non-legal and commercial controls in the TV formats industry has been effective in stemming plagiarism. The stigma associated with overtly copying a show is quite a deterrent in a tight knit industry such as that of TV formats.Moreover, it is unlikely that broadcasters who rely on producers’ diverse portfolio (which usually includes formats as well as other programs), will copy a format if they wish to maintain their relationship with the producer and continued supply of other programs.
In conclusion, global copyright policy should be aligned to recognize that: (1) In some situations copyright protection is not necessary to encourage creativity and may infact harm innovation; and (2) It is not necessary to protect works wherea ‘productive infringement’ of a work builds on existing works and technology to create a new creation fostering innovation.
However while a low IP law environment promotes innovation in Negative IP Spaces as seen in the TV Format industry, it is important to underscore the value in IP legal protection as a fallback mechanism in the event that the fragile social, legal and commercial norms that govern Negative IP spaces break down.