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05 August 2013

Can or should TV and other formats be copyright protected?

Copyright as balancing instruments on markets for cultural goods

With the emergence of television formats, copyright protection of formats was – and still is – doubted for several reasons: Formats such as scripted reality or game shows consist of games and methods which only reproduce facts, as abstract concepts they rather resemble ideas than expressions, and given their expression they might not be sufficiently original. Therefore, formats shall belong to the public domain and not be protected by exclusive property rights. The question about copyright protection of formats is differently answered amongst the EU Member States. While the Dutch Supreme Court considered in the case ‘Survive! vs. Big Brother’ that the Survive! format is copyright protected but was not adapted by the Big Brother format, however, the German Federal Court of Justice decided in the case ‘Kinderquatsch mit Michael’ that formats are per se not copyright protected.

Copyright necessary for markets of cultural goods?

The diverging levels of copyright protection lead not only to legal uncertainty on the Single Market but simultaneously raise the question about the necessity of copyright protection. Given a broad definition of linear and non-linear formats including advertising concepts as well as online platforms, games and upcoming cross and transmedia formats, the respective markets illustrate that copyright protection is not in all cases necessary for their growth. In many decisions the courts did not consider those cultural products as copyright protected without having any apparently negative effects for the respective markets. Indeed, to increase legal certainty on the Single Market it would be useful to harmonise the definition of the copyright protected work either affirming or denying formats’ copyright. Thereby, the question whether formats should be protected or not highly depends on the purposes of copyright.

Balance of interests by copyright law

Pursuant to individualistic copyright theories in continental Europe, copyright law protects the author of the work as an artist. While this one-dimensional purpose corresponded to the situation in the 18th century, in the so called digital age copyright concerns not only single artists but whole cultural industries and, increasingly, users participating in the so called participatory or remix culture. This cultural development changes the perception of copyright not as protection instrument for artists but rather as instrument to balance the interests of all participants involved. In contrast to indivudualistic theories, Anglo-Saxon utilitarian copyright theories are more suitable to explain the balancing of these interests taking not only the artist but the society as a whole into account. Given their focus on the effects that copyright law has on society as whole, utilitarian theories allow to feedback their corresponding theoretical assumptions. Thereby, the definition of the copyright protected work serves as an first entry point for the balance of interests that might be re-balanced in a later step: A broad definition of the protected work may require to lower the bar of copyright by such means as a fair use clause or exceptions. How do participants of format markets consider the importance of copyright on their innovation practice? Which criteria do they think are relevant for the decision on the protection of (their) formats?

Copyright protected work – market participants and the European Court of Justice

Related to the HIIG research project “Circulation of cultural Goods” of the research area “Internet Policy and Governance” and in the framework of the author’s master thesis at the Eulisp Institute Hannover, participants of format markets, such as for television and advertising but also of the open source movement, were surveyed with respect to the necessity of copyright protection for formats and for the society at large. The results show a trend towards a very broad definition of the copyright protected work but to a narrow adaptation right in favour of subsequent re-creators. So far, the results back the definition of the copyright protected work that the ECJ developed in five recent cases, based on so called recitals of the respective copyright directives. Correspondingly to utilitarian theories, these recitals also consider copyright as essential to foster creativity and innovation to the benefit of the society at large. But two aspects cast doubts whether European copyright as well as its interpretation by the ECJ really helps in finding a fair balance between all markets participants: Firstly, the recitals presume that only a high level of protection is appropriate to foster creativity in general. This tendency makes it difficult to re-balance the broad definition of the copyright protected work in later steps such as by a narrow adaptation right or a wide fair-use-clause, respectively. Secondly, the Court does not use the purposes of copyright provided for by the recitals to balance the interest of the participants involved. Instead, the Court focuses on the interests of the author. Hence, the recitals serve rather to justify the judgments per se – at least increasing legal certainty. Since the court did not yet decide on adaptations of copyright protected work, the question if or how copyright serves in the Single Market for a fair balance between the interests of the market participants remains for future courts to be decided.


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Maximilian von Grafenstein, Prof. Dr.

Associated Researcher, Co-Head of Research Programme

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