ITALIAN LEGAL POSITION ON COPYRIGHT PROTECTION OF TV FORMATS

 

 

 

 

 

 

 

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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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