Austrailia

AUSTRALIAN TREATMENT OF TELEVISION FORMATS


Television formats are a feature of Australian television and many examples can be found on its free-to-air and pay television channels. Australia produces its own television formats such as Backyard Blitz, The Block, Hi-5, Bananas in Pyjamas and The Wiggles. It also licenses many overseas formats and makes its own authorized local versions such as Who Wants to be a Millionaire, Survivor, Big Brother, Sixty Minutes, Treasure Island and so on.

There is no specific legislation aimed at protecting television formats in Australia; and there are currently no plans to provide such protection. Still, Australian courts have recognized that in limited circumstances a television format is capable of protection.

From a practical point of view the main way of protecting a television format in Australian law is by way of contract in the form of a franchise or licence. The owner will license the various detailed elements in the format so that a local production company can make its own version. Some elements may be registered as trade marks – provided they are distinctive – and in some circumstances they may also be protected by the law of confidential information and copyright.

Typically, a format owner will protect the title as a trade or service mark. This is the bare minimum, because trade mark registration may also extend to characters and distinctive props in the television format. There are many children’s television shows, for example, where all the regular characters – including cars, bananas and trains – are registered as trade marks. These can then be officially licensed and unauthorized use of a confusingly similar trade mark by a third party can be restrained.

But while trade mark registration is an important way of protecting some elements in a television format, it falls short or protecting the format in its entirety. In common with most countries Australian law will not protect a mere idea. However, if the idea for the television format has been ‘sufficiently developed’ and backed up by a detailed written description of its format it may be capable of protection both under the law of confidential information and copyright.

The law of confidential information provides protection for television formats but the scope of protection is limited. While it makes very good sense to obtain a confidentiality agreement when pitching a television format to a potential Australian buyer, it is very rare that an Australian television station or production company will agree to such a contract.

Apart from a contractual duty of confidence a format owner may be able to rely on an equitable duty of confidence. But this area of the law underscores the need to both describe the television format in sufficient written detail and label every page and disclosure with a confidentiality notice. But, once the format is no longer a secret this avenue of protection is virtually useless.
While in theory Australian copyright law will protect a television format which is not a secret, there are no copyright cases where a television format has been successfully protected. Still, Steven Spielberg’s blockbuster movie Jaws was protected from an infringer who copied various elements in the movie. Importantly, the copyright protection argument succeeded in that case because there was voluminous evidence addressing the ownership of the copyright in the underlying novel and a screenplay. The other key reason why the copyright protection argument succeeded was because there was sufficient coincidence between the main characters, the plot and themes.
It is rare that a television format owner will have underlying rights like those in the Jaws case – a novel and screenplay. But what they should have in any contractual licence, is as much written detail as possible that describes the distinguishing and novel features of the television format. That will help establish both copyright ownership and sufficient coincidence between the formats where there is unauthorized use by a third party.

Wayne Covell

June 6, 2005