How can formats and concepts of TV serials and game shows be protected? Purnima Singh and Himanie Katoch discuss the legal scenario in relation to the protection of TV programmes and a new forum especially designed to settle disputes
The similarity in the concept and format of programmes across TV channels today is hard to miss. This is particularly true with the increasing popularity of game and reality shows as well as the current popular themes for serials such as the depiction of a child bride in rural India or the life of Lord Krishna.
The term ‘format’ is sometimes imprecise. At one extreme it is used to describe the outlined structure of shows or a factual entertainment programme. At another, it is a detailed mix of elements such as copyright, set design and other confidential and commercially valuable information.
Local versions of popular international programmes are common features on TV. The big question is to what extent the format of programmes such as Bigg Boss, Antakshshari or Krishna Kanhaiya may be protected. Complexities arise since ideas, principles, themes, historical or legendary facts, being common property, cannot be the proprietary right of just one person. This is increasingly controversial in light of competing television companies hosting TV services (including the broadcast of programmes overseas) coupled with the ever increasing programme licensing arrangements which have great commercial value.
Disputes involving the concept and format of such programmes are difficult to resolve in court, particularly where multiple jurisdictions are involved due to the lack of uniformity in the national laws.
The long standing debate on the extent of protection afforded to formats and concepts of TV programmes therefore continues.
In India, the Copyright Act, 1957 (“Copyright Act”) confers protection to creative works which are original and reproduced in some tangible form. Indian copyright law does not recognise property rights in abstract ideas. Two fundamental criteria must therefore be fulfilled in order for a subject matter to qualify as a copyrightable work, namely, originality and fixation.
Judicial precedents suggest that Indian courts are generally hesitant to protect formats and concepts of TV programmes unless the subject matter specifically fits into the traditionally applied principles of copyright. The Supreme Court re-enforced this in their observations in RG Anand v. Deluxe Film [AIR 1978 SC 1613] stating no copyright subsists in ideas, subject matter, themes, etc.
Only the original expression of such thought or information in some concrete form is protected. Absent the recording on a medium, there cannot be protection under the Copyright Act. The widely accepted view therefore is that formats and concepts in programmes do not by themselves qualify for copyright protection. Once again the protection of concepts was tested in the case of Barbara Taylor Bradford v. Sahara Media Entertainment Ltd [2004 (28) PTC 474 (Cal.)] where the TV serial, Aparajita allegedly infringed the copyright in a book, A Woman of Substance.
The court attempted to draw the distinction between a copy of an idea which is permitted, and the copy of an expression of the author which is protected. An injunction was denied since it was established that the scriptwriter had not even read the book. In the Antakshari case [Zee Entertainment Enterprises Ltd v. Gajendra Singh and Ors.; 2007(6) Bom CR 700], however, the plaintiffs were successful in restraining the defendants who had developed a similar game show on the commonly known game of antakshari with a similar concept and format for which they even got the same anchor as the one on the plaintiff’s show.
Given the complexities in protecting TV programme formats and concepts it is important for the creator to consider all the elements which are unique to the TV programme during conceptualisation such as the name of the programme, catchphrases, regular features, music, choreography, special effects, lighting etc. Documenting these in a permanent form in as detailed a package is critical to protection.
A welcome development for TV programme creators is the April 2010 alliance between the Format Recognition and Protection Association and the Arbitration and Mediation Centre of the World Intellectual Property Organisation. This promises a cost and time effective alternative dispute resolution forum specifically designed to resolve disputes in relation to TV concepts and formats.
Purnima Singh is an intellectual property and media and entertainment lawyer working as a senior associate at AZB & Partners in Mumbai.
Himanie Katoch is a corporate and media lawyer working with AZB & Partners in Mumbai.