When the hit television program “The one that's coming”Many were surprised by its similarity to the equally successful Antena 3 series “No one can live here.”The same confusion can be caused by the thematic proximity of other programs that are broadcast daily (and often simultaneously) on television, such as “MasterChef” and “Top Chef” or “X Factor” and “You're the real deal”How is it possible that they coexist in national programming? shows so similar, or even identical programs in different countries?
In this post, we will try to answer this question, and to do so, we will discuss television formats and the possibility of their protection under Intellectual Property Law (LPI).
To begin with,what is a television formatThe term has been coined by the small screen industry and lacks support (or even mention) in our Intellectual Property Law or any other legislation currently in force. However, television formats are undoubtedly the driving force behind the television industry today, and for this reason there have been several attempts to define them. There is a wealth of case law from our courts that has tackled the difficult task of both offering an approximation of the term and assessing whether or not it can be protected by the Intellectual Property Law (you can find a list of different rulings at this article).
Thus, the Supreme Court, in its judgment of October 22, 2014 remember that the dictionary of the Royal Academy defines the word format in its third meaning as “the set of technical and presentation characteristics of a periodical publication or television program or radio”; and then, referring specifically to television formats, he understands that “format is the set of technical and intellectual elements intended for the production of a regularly broadcast television program with a narrative structure, characters, and scenic elements common to all broadcasts”For its part, Commercial Court No. 4 of Madrid, in its Judgment No. 101/2014 of May 7, defines format as the “set of elements that make up the basic structure of a television program, together with the accumulated knowledge or know-how acquired during the production process”.
It could therefore be said that a television format consists of all those elements that give a television program a series of characteristics that define and differentiate it from others that may be similar.
It is now appropriate to ask whether it is possible to protect this “basic structure” through intellectual property rights. We must remember at this point that in our Intellectual Property Law, and in general in the various laws relating to copyright, mere ideas are not protected, which belong to the public domain and can be freely appropriated by anyone (as explained in this article regarding works created by AI); but rather the works, that is, the concrete form of expression of that idea. (Art. 10 LPI). Furthermore, Article 10.1 of the LPI requires that, in order to fall within the scope of its protection, said form of expression or representation of the ideas be original (as we also explained when discussing photographs) here). Therefore, Only original works that are physically expressed will be protected by the LPI.
Article 10 of the Intellectual Property Law lists, by way of example, a series of works eligible for protection. As this is not a numerus clausus, leaves the door open to the possible protection of other categories of works not expressly covered, provided that they meet the requirements already outlined. The formats share common elements with architectural and engineering projects, plans, models, and designs (expressly covered by Article 10.1.f of the LPI) or with scripts for audiovisual works (protected by Article 87 of the LPI) insofar as do not constitute what will be the final version of the work, but rather the ideas, indications, and instructions whose execution will result in the desired work.. Therefore, provided that the above requirements are met, it appears that formats could indeed be included in the catalog of works eligible for protection.
The main problem they face in practice lies in the proximity of the concept of format to mere ideas which, as we say, cannot in any case be protected by an exclusive right, but must belong to the public domain so that anyone can develop them freely. Our High Court has ruled on several occasions that for a format to be eligible for protection, it must be produce the qualitative leap between mere general concepts and their detailed and formally structured embodiment, giving rise to a creation of a certain complexity, through a creative activity.
In this way, television programs that represent one specific form, among several possible ones, of developing a general concept or generic idea belonging to the cultural heritage cannot be protected by copyright.. This is why programs that are very similar in terms of their subject matter and/or development can coexist: it is impossible to grant one person the exclusive right to prohibit a third party from developing an idea in a subsequent program. An example of this is the case mentioned at the beginning of this article, in which the Provincial Court of Madrid ruled in this sentence that there is no plagiarism of “La que se avecina“ with respect to “Aquí no hay quien viva,” since, despite the obvious similarities between the two programs, “the plots, scenes, characters, settings, and expressive or technical resources respond to standards, patterns, stereotypes, or clichés that do not allow us to appreciate the uniqueness of “Aquí no hay quien viva."”.
With regard to identical programs broadcast in different locations, it is important to bear in mind, first of all, the distinction between television format and television program, this being the audiovisual result obtained from the embodiment of the former. In the words of the Supreme Court, the format is “the recipe” for creating a program (Supreme Court Ruling 10/22/2014This distinction is not merely conceptual, but has significant legal implications. The owner of the rights to a television format, which has achieved sufficient originality and specificity to enjoy protection under the IPL, holds both the exploitation rights (remember that these consist of the power to authorize and/or prohibit its reproduction, distribution, transformation, and public communication) and the moral rights (integrity, authorship, etc.) over it. This entitles them to grant licenses to third parties to develop this know-how, and produce an identical television program in another territory as if it were a local program.. What would be licensed in that case would be the format from which the licensee would create a new program, that is, a new derivative audiovisual work of the format; which is very different from a transfer of rights over the original audiovisual program/work. This distinction is important (and complex) in terms of the distribution of rights, since the licensee, presumably the producer, would also hold, over the new audiovisual recording, the rights conferred by the LPI on audiovisual producers (arts. 120 LPI et seq.), without prejudice to the fact that the presumption of transfer of rights over the audiovisual work, originally owned by screenwriters, directors, authors of the script, and authors of the musical compositions (Article 87 of the LPI), could also operate in their favor.
Case law is divided. There are numerous rulings both for and against the protection of television formats. There is therefore no clear and unanimous answer; rather, it will depend on the specific case., which is both good and bad news. The bad news is the insecurity and uncertainty, since in the event of a dispute, the matter will necessarily have to go through the courts with no guarantee of success. The good news is that, ultimately, it is possible to protect formats through intellectual property rights, provided that they are novel, original, and manage to provide that quantum leap to which our courts have referred.
[Article written by Patricia Fernández Céspedes]
