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HOW SAFE IS YOUR FORMAT?
FRAPA initiates report into global format protection
FRAPA
is seeing in 2010 with a range of new initiatives, chief among which is a
new report — thought to be a first — into the current state of format
protection around the world. Joanna Stephens reports.
JONATHAN Coad, head of the Swan Turton’s
litigation group, is described on the UK law firm’s website as “a tenacious
litigator” who does a “splendid job in providing the right answers”.
This will come as particularly good news to
FRAPA, which has entrusted Coad with providing an answer to a question that
has been vexing the TV industry since the BBC paid CBS $50 for What’s My Line back in 1951. “And that question
is, to what extent are TV formats protected around the world,” says Coad,
who is aiming to complete the FRAPA-commissioned survey into the global
state of intellectual-property (IP) protection by next summer. The new
report will be presented at MIPCOM in October 2010.
Johnathan Coad:
“I have something of the feeling of a
frontiersman”
It is an ambitious deadline. Coad jokes that his
decision to take on such a challenging task on top of his already heavy
caseload was “a moment of abject insanity”. But he is being entirely
serious when he adds: “Most legal practice is intellectually dull, but this
area is fascinating because the law is dealing with an entirely new set of
circumstances, which is something it doesn’t often have to do. As a result,
I have something of the feeling of a frontiersman, which is great fun. And
it’s also a privilege that is given to very few lawyers.”
Fortunately for Coad — and the legal trainee
he will bring in to help him with the research — he has already done much
of the report’s spadework, having done extensive work in the field of
format protection. Not only has he written several expert reports for international
litigation, but he is also director of the International Format Lawyers
Association (IFLA), which he founded in 2005 to provide the burgeoning
formats industry with an international network of specialist TV and IP
lawyers. Add this to his role as a legal advisor to many of the UK’s top
broadcasters and producers, his busy international seminar schedule, his
regular appearances on radio and television as an expert commentator on
format rights — and wrongs — and it becomes clear why FRAPA decided that
Coad was the right man to produce a new global roadmap of format
protection.
The daunting workload aside, Coad is
embarking on the FRAPA survey in an optimistic frame of mind. He believes
that, with certain exceptions, formats are now “substantially protected” in
most territories around the world. “At the last count, there have been
roughly 70 cases worldwide involving formats, of which approximately 50%
have been successful,” he says. “That tells you, (a), that a respectable
percentage of cases are succeeding and, (b), that people wouldn’t be
bringing those claims if they didn’t think it was possible to protect
formats under their own legal systems.”
He adds: “Every year that goes by, the canon
of law in this area increases. There is now a broad international consensus
on format protection, based on expert evidence from IP lawyers like myself.
And if the industry recognises this new species of IP, then so, too, should
the law.”
The new FRAPA study comes on the heels of The FRAPA Report 2009: TV Formats to the World, which launched at
MIPCOM in October. Among the latter’s key
findings was that the production volume generated by traded formats has
increased to approximately €9.3bn — proof positive that the formats
industry has graduated from a bit player to a major performer. This surge
in value underscores the commercial imperative of adequate protection,
especially given the huge amounts of money now commanded by the A-list
formats. American Idol, for
example, was recently valued by Forbes at an eye-popping $2.5bn, made up of
revenue from sponsors, merchandising, telephone, music sales, broadcast and
advertising.
“I know, as a commercial litigator, that a
cocktail of very valuable IP with uncertainty about the relevant law
results in litigation,” Coad says, adding wryly that “buying and selling
formats without confidence that they have a legal existence is like buying
and selling cars without locks on the doors”.
In the meantime, the best way to protect your
format is to cultivate a reputation for zero tolerance: “When I was
starting out as an IP lawyer, everybody knew that Disney would cut off your
legs if you went anywhere near their intellectual property. So guess what?
Nobody risked it. In reality, people won’t stop nicking formats, but it is possible to stop them nicking yours. If, like
Disney, you are known to have zero tolerance of format thieves, your
next-door neighbour may get burgled, but you probably won’t.”
Coad’s report is not the only FRAPA
initiative aimed at helping its members to avoid losing money: it has also
launched a new international debt-collection service with Amsterdam-headquartered
Atradius Collections.
The current financial crisis has had a
deleterious effect on payment behaviour across the business spectrum. But
for the formats industry, with its border-breaking products and global remit,
the problem of chasing debt can be particularly complex. “And it’s very
often a double whammy,” says Eva Stein, FRAPA’s Cologne-based managing
director. “On the one hand, overdue invoices and bad debts can quickly
drain a company of its financial lifeblood. But on the other hand, if you
chase outstanding accounts too aggressively, you run the risk of
endangering long-standing business relationships. In many cases, the answer
is to take the ‘personal’ out of the problem, and pass it over to a professional
collection service.”
Observing that the global trade in formats has experienced exponential
growth in recent years, Atradius Germany’s senior sales manager, Sascha
Glaesser, adds: “Our strength lies in our ability to integrate our local
knowledge and expertise into a single seamless process to provide our
customers with efficient and prompt debt recovery — regardless of where in
the world that customer or their debt is. Considering the nature of the TV
formats industry, this combination of local and global capabilities should
be extremely valuable to FRAPA’s members, many of whom trade in an
increasingly borderless environment.”
FRAPA is also set to launch a new Hotline
service in the New Year, designed to provide its members with expert advice
on a range of format issues, from licensing and contracts through format
protection to commercial tactics. “The idea is that you contact us with
your question and, within 24 hours, the most qualified FRAPA board member
will get back to you with advice or solutions,” Stein adds.
For Ute Biernat, FRAPA chair and CEO of
Grundy Light Entertainment, this latest round of FRAPA initiatives
underline the association’s determination to provide its membership with
targeted and tangible services. “We want our members to realise that joining
FRAPA means joining a vibrant community of like-minded professionals,” she
says. “Our aim is to transform FRAPA into an interactive experience, not a
passive one. With the new Hotline, we are offering access to some of the
most respected format professionals in the world. Our Board members have
real experience and knowledge of creating and monetising formats — and they
are prepared to share their insights for the greater good of our industry.”
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