Are there format rights under the intellectual property code?

In the Philippines, this question has been discussed in the case of Francisco G. Joaquin, Jr., and BJ Productions, Inc., vs. Honorable Franklin Drilon, Gabriel Zosa, William Esposo, Felipe Medina, Jr., and Casey Francisco where Petitioner BJ Productions, Inc. (BJPI) lost a case when it sought to establish a format right to its TV show concept, Rhoda and Me. The Court in that case said that there could be no copyright in an idea and ruled that there could be no copyright in the format of this game-show. In the international arena, the first case which could be considered to deal with format rights is the 1989 case of Hughie Green v. Broadcasting Corporation of New Zealand. In this case, Hughie Green effectively claimed format rights in his programme, Opportunity Knocks. The court wasnt entirely impressed with his claims though and his actions were unsuccessful, many lawyers seem to believe that had he initiated legal proceedings today, he would have been far more likely to succeed because of the changed climate in intellectual property. In a 2008 judgment, the Brussels Tribunal of First Instance said that it was not enough for the idea of the format to be original; its description in the document should express its creators personality and the intellectual effort the creator claims to have invested in it. Merely enumerating a number of ideas and games, none of which is developed concretely and graphically is insufficient. There must

be an adequate number of concrete elements to be considered a copyrightprotected format. As such, it would seem that the judiciary in that jurisdiction is willing to recognize format rights if the formats are systematically documented, and that documentation is provable The first instance of format rights being recognized by a court, however, was not in this 2008 Belgian judgment but several years earlier in a 2001 case where format rights were recognized by the Hungarian Supreme Court in a dispute regarding a radio show, Cappuccino. Since then, there have been quite a few instances across the world where format rights have been recognized and protected. However, the protection accorded to them has often been extremely dependent on the facts and circumstances of the dispute in question. A successful claim for breach of copyright has now been made in Brazil based on the Big Brother format. Here the claimant was Endemol, which owns the format. Endemol had entered into negotiations with TV SBT of Brazil, in the course of which Endemol provided extensive information on the Big Brother format. TV SBT chose not to acquire a license for the format and produced, Casa Dos Artistas (the Artist's House), which the Brazilian Court described as a "rude copy". Endemol and its Brazilian licensee for the Big Brother format (TV Globo) sued TV SBT, seeking an injunction and damages. The defendants claimed that a reality show is no more than an idea, citing the lack of scripts. The

said the idea of locking up people inside places and observing them is not new ... the work "1984" by George Orwell deals with this theme. The Court found that the Big Brother format enjoyed copyright protection under the Brazilian law of copyright, and noted that Brazil was a signatory to the Berne Convention - which gives a work from another territory certain basic protections and in all events accord the work the same treatment as they offer their own nationals. The judge did not spare the defendants, stating that The whopping similarity between both programmes does not stem from chance, but from a badly disguised and rude copy of the format of the programme Big Brother. The Court made awards of damages to Endemol of approximately 400,000 pounds sterling, and to their Brazilian licensees of over 1 million pounds. Whilst these cases support the concept of a copyright for a programme format, they are not binding in Philippine law. The position of Philippine law is still based from the case of Francisco G. Joaquin, Jr., and BJ Productions, Inc., vs. Honorable Franklin Drilon a format is an idea, and in itself as an idea it cannot be protected in copyright law. But even if our statutory law does not recognize format rights as a form of intellectual property, the fact that the industry does recognize this means that

disputes arise with reference to format rights, and that those disputes need to be resolved. Recently, WIPO (the World Intellectual Property Organization) has also joined in the effort with its Arbitration and Mediation Center collaborating with FRAPA. Under the new collaboration, the WIPO Center will take on FRAPAs existing mediation activity and will administer TV format-related disputes filed under the WIPO Mediation and Expedited Arbitration Rules for Film and Media. So even if legislatures and judges are slow to recognize format rights, other agencies are in the process of creating and structuring procedures which could be used to solve disputes related to format rights.

References Francisco G. Joaquin, Jr., and BJ Productions, Inc. vs. Honorable Franklin Drilon, Gabriel Zosa, William Esposo, Felipe Medina, Jr., and Casey Francisco, [G.R. No. 108946. January 28, 1999.] Green v Broadcasting Corporation of New Zealand (1989) RPC 700. Castaway Television Productions Ltd & Planet 24 Productions Limited v Endemol (2004)

http://www.simkins.co.uk http://www.frapa.org/ http://www.wipo.int/copyright/en/faq/faqs.htm