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Should Television Formats Be Copyright able?

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  1. Introduction
  2. The dramatic work - a reality
  3. The consultative document and the possible end of format rights
  4. The new breed of 'real' format rights
  5. Conclusion

The idea of copyrighting television formats has become a prevalent area of debate in recent years, partly due to the increased global marketing/trade in television today and partly due to the changing nature of our television viewing habits and the types of programs on offer to the public at large. The ingress of ?Reality Television? onto our screens has sparked widespread comment on whether format rights should be available to broadcasting companies and program creators alike, in order firstly to protect them from infringement and secondly to ?protect? the public from an influx of similar programs.

It is my belief that by allowing format rights in television programs, one is not only radically extending what is considered to be a dramatic work for the purposes of copyright law, but by giving this type of control to production companies one is narrowing the public's right to choose and only taking from an ever diminishing public domain.

[...] 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? [...]

[...] The Privy Council held that this only gave a general idea or concept, and that these details were not specific enough to be protected law does not protect a general idea or concept which underlies the work, nor any one fact or piece of information contained therein.' Furthermore, it was held that on the facts that the catchphrases and other devices that appeared in every show were merely accessories, which were then used in some other dramatic work.[6] Therefore, this case failed to recognise format rights per se for television programs, and more specifically, this first version of Reality TV programming. Formats rights were consequently rendered void, a right that was thought to exist prior to this case. [...]

[...] However, beyond these court battles, are the formats of these and other Reality TV programmes really copyrightable as a dramatic work? Richard Kilborn submits his idea for a generic Reality TV format as follows: recording the wing' and frequently with the help of lightweight video equipment, of events in the lives of individuals and groups the attempt to simulate such real-life events through various forms of dramatised reconstruction the incorporation of this material in suitably edited form into an attractively packaged television programme which can be promoted on the strength of its reality credentials. [...]

[...] However, how difficult it would be to prove deception remains to be seen. Furthermore, whether they are similar or not, in this age of culture' where Reality TV is more popular than the news, there may be some question as to whether any damage would really be suffered. END OF A GENRE? At present, there about 10 well known and regular Reality TV shows, with many more being added to the genre every week. Since the late 1990s there has been a rapid increase in this type of programming in this country, and until the next new craze comes along, there seems to be no signs of it slowing. [...]

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