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There is
no express or specific protection for TV formats under Italian law however
there is a growing trend in favour of granting some form of the legal
protection to this commercially valuable concept.
Until a
few years ago, there were differing opinions in the Italian Courts as to
the legal protection of a TV format: according to mainstream legal opinions
a TV format was just an idea which had not yet been realised and, as such,
could not be considered as an accomplished “work of the mind”. This
view was strongly supported by the Court of Milan, in a decision issued on 9
October 2000, which categorically stated that “a television format is
not protected by Italian copyright law”.
However,
in an earlier isolated case, the
District Court of Monza
(26 May 1994) had held that:
“the format must
be detailed and original enough so that
the nature and the sequence of the events to be represented on TV
can be described”.
In
other words, the plan and the structure of the format are so specific that
it can be considered not as a simple idea but an actual project and
therefore an accomplished work of art.
More
recently, partly due to the ubiquitous nature of format TV shows on Italian
television, the Italian courts have more consistently recognised the
statements made in the decision of the Court of Monza, namely that a TV format can be protected
when certain requirements are met.
In
particular the courts have held that:
a) the format must be detailed and have some limited degree of
originality;
b) the format
must provide sufficient elements to characterize in a definitive way the
nature and developments of the events.
In a
recent decision issued 12 March 2004 the Court of Milan indirectly granted
copyright protection to the television format “Big
Brother”: the Court deemed
that the network “Sky Italia” had the right to take legal
action in order to protect its copyright on this format since it was the
licensee and, as such, had exclusive rights to broadcast the format.
While in
Italy - as in all other European countries - there is no requirement to
register a copyright work to obtain copyright protection as the right is
considered automatic on creation of a new copyright work, it is interesting
to note that Italy’s Copyright Collecting Society ‘the Italian
Society of Authors and Editors’ (SIAE) provides the possibility to
register unpublished formats both to members and non-members. This
registration can prove very useful in solving disputes on the ownership and
date of creation of a format.
A clear
definition for formats has also been adopted by SIAE. It defines formats as follows: “a
work of the mind having an original structure which sets out and explains a
show”. Furthermore SIAE has made internal rulings which have set down
some requirements under which a television format – as well as a
radio format – can be considered copyrightable. They require that a
format must be:
·
characterized by a title;
·
have a narrative background
structure;
·
a stage-setting; and
·
have fixed characters.
Although
technically of no legal value except as internal rules for the Society,
this definition is likely to indirectly influence the courts in granting
copyright protection to TV formats in the future.
Under
Italian legislation there is also the additional possibility of protecting
TV formats under the unfair competition law. The main difficulty here
arises from the fact that, since a format is a plan and not a realised work
of the mind, there is not always a competitive relationship in the market
between the author of the format (if an individual) and the infringer of
the format (if a TV company).
On the
other hand, unfair competition law may be applied when two TV companies
enter into conflict by using the same format in their TV programs. In this
case, it should be possible to request the court to make a finding against
the alleged format’s infringer based on unfair competition and
professional misconduct. Unfortunately the case law is not consistent on
this point.
Since
the Italian Copyright provisions are currently being amended with the
purpose of increasing the range of activities covered by copyright
protection, i.e. to databases, it can only be hoped that - particularly given the considerable
economic and creative efforts involved in the production of a TV format as
well as the substantial economic sums involved in their exploitation - the
protection granted by the Italian system to well-defined television formats
will become more robust in the near future.
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