Should Television Formats Be Copyright able?

Extract

[...] While this may be the case, I would not agree that this is a job for the courts to do some may argue that there are too many Soap Operas on television, or quiz shows and then at the other end of the scale, others may argue that we need more factual or news programmes; does this then mean that the law has a right to pick and choose what the public should be watching as it sees fit, all under the heading of ‘format rights'? Whether the market is giving us what we want or not, that is beside the point what matters is that we have the right to choose. The production companies already have so much control over what we watch, why should they be given any more? [...]

[...] THE FORMAT TRADE With the absence of rights, the users of television formats generally become part of the ‘trade' that is, are involved in the sale of licenses, usually for substantial amounts.[15] Formats are, in this day and age, very saleable, and one rumour is that Chris Evans made large sums of money for the sale of his format for ‘Don't Forget Your Toothbrush'.[16] In fact there is business to be had and money to be made in the area of ‘know-how'. That is, people have made an art of selecting contestants or other areas of format ‘know-how', and often the sale and licensing of these are a ‘precious commodity'. If this is the case however, then why formats continue to be licensed in this way? [...]

[...] There appeared to be no question of about that. The point about the Hughie Green case is that it was so amazing. One could hardly believe that decision arrived at.' Those that sought after format rights believed that formats require just as much input and creativity and original idea as any other work would, and further to this felt that it was unfair to protect formats that had been worked just like any other work. Peter Smith has been one of the proponents of format rights for some time, stating ‘that talent will not come forward and those producers will not invest in new ideas if the cogent expression if those ideas is not protected from theft.' However, I would submit that Peter Smith is perhaps missing the point in every aspect of life where the public are in fact consumers of clothes, of groceries and even what they watch on television there needs to be competition. [...]

[...] If there is such a desperate need for control in this area, it should come from ratings, or even television watchdogs. If it were to come from the legal arena, this would essentially be a form of censorship, which in an age of democracy and freedom could be seen as a little ‘conservative'. ‘Entertainment means choices' says 'Gilmore Girls' creator Amy Sherman- Palladino, who even argues that scripted television, is every bit as good as this Reality TV craze. Yet she is in agreement, we have and need choices in this life, and why should the entertainment industry be any different? [...]

[...] Another method of intellectual property protection is that of passing off. This is where there is some kind of misrepresentation by one person which damages the other there must be three elements present, goodwill, misrepresentation and damage. For example, in the ‘Survivor' case, it will need to be proved ‘that the public has been deceived that Get Me Out If Here came from the producers of Castaway'. Passing Off may work for the protection of Reality TV formats, where another, very similar programme has entered the market, and it is so alike in outlook, presentation and subject area that the public believe they are both from the same company. [...]