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The
Paris High Court has given protection for a television programme
format under the law of passing off.
The
claimants, Saranga Production, produced a format
for a political docu-drama show entitled Crise en direct. The broadcaster, Canal
Plus, one of the defendants, sought proposals from production companies for
a new politically themed programme. The claimants
met with the defendants and presented their ideas. Canal Plus then commissioned
a different production company to produce programmes
using themes and characteristics in the claimants' format. The defendants,
Canal Plus, a production company and two journalists involved in
production, were then responsible for producing and broadcasting a programme entitled C'est
déjà demain.
The
claimants brought an action for passing off in respect of the programme C'est
déjà demain. In order to establish passing
off under French law, the claimants had to show that the defendants had intentionally
taken characteristic features of their format, that such formats were of
economic value and that this had caused them loss.
The
defendants argued that they had independently developed their programme before they met with the claimants. They also
argued that the claimants' format had no independent economic value because
it lacked originality and merely used themes and characteristics which were
commonplace within the public domain.
The
court found that there was no evidence that the defendants had already
developed their programme before meeting the
claimants. The issue of originality of the format was not relevant to
establishing passing off, unlike in the law of copyright. The court also
held that formats are "commercial products" with inherent
economic value.
The
court held that the broadcast of the defendants' programme
had caused the claimants loss in that it had deprived them of the
opportunity of marketing their format to another broadcaster.
The defendants were ordered to pay damages of 150,000 Euros and other
relief was granted.
Although
this decision does not provide any indication of whether the French court
might afford copyright protection to television formats, it demonstrates
that the court is willing to grant them protection via other forms of legal
action. This is consistent with a general trend worldwide to give
protection to this valuable species of intellectual property.
Jonathan
Coad and Eleanor
Adams
Film & TV
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