See event resource page here (on the Humboldt site, opens in new window).
See full event report here (opens in new window).
See another student perspective post (similar to one below) here.
– Post by Mr. Andrew Black (LL.B Hons, LL.M Distinction), CREATe Research Assistant, University of Edinburgh
Television viewers around the world have either watched or are familiar with local versions of hit television shows such as Who Wants to be a Millionaire?, Strictly Come Dancing, and, Idols. Formats such as these are widely traded in a global format market that is estimated to be worth billions a year. Individual formats have been reported to have been licensed for fees that can reach into seven figure sums. Such success, however, occurs despite the fact that the copyright law framework of most nations offers no direct legal protection for the formats themselves.
Against this backdrop I recently had the pleasure of attending a workshop held in Berlin which aimed to bring together research and practice on this topic. The workshop, organized in Berlin jointly by CREATe and the Alexander von Humboldt Institute for Internet and Society (HIIG), brought together leading academics and practitioners to explore the field over the course of two days. Speakers shared a mix of practical and academic perspectives on the changing production of formats, their protection, and the value of an international comparative approach to exploring both.
The workshop was of particular interest to me as TV formats are an excellent vehicle through which to explore the impact of intellectual property on creative practice and the factors that may influence enforcement strategies outside of the courts. In this manner it was hoped that the workshop would therefore explore themes that would prove valuable to two of the current CREATe projects with which I am involved: One exploring copyright and individual creators; and one exploring the civil enforcement of copyright. Despite the absence of copyright protection in TV formats there is nonetheless a thriving market for their production and, given this value, a vigorous practice of enforcement. Exploring IP’s negative spaces therefore offers insights into the nature and effectiveness of legal regulation and sheds light on the normative alternatives to litigation that may influence enforcement strategies.
The rich and varied mix of speakers, both from academia and the industry, was one of the highlights of the workshop. The first-hand accounts of those currently working in the formats sector gave a concise insight into its inner workings that helped give a rich context to the academic work. The keynote by Susanne Stürmer provided a great introduction in this regard, bringing the latest industry statistics and trends to the table. Her talk highlighted the stark difference between the success of the format markets in the UK and Germany: The UK has for some time been the global leader when it comes to format exports, whilst the Germany market is a net importer. This provided the basis for a comparative look throughout the workshop at the impact of legal regulation on the format market. The legal regimes of both countries stand in sharp opposition: In the UK the majority of rights must remain with the producer when a format is produced (by virtue of the 2003 Communications Act) while in Germany the broadcasters are typically able to acquire all of the rights in the format through contract. This, it was suggested, can be argued to be a contributing cause of the weaker German market as the rights under the German model normally end up with a party who was not involved in the actual production process.
When it came to the session exploring the changing protection of formats therefore a number of the protection mechanisms identified could be hampered by the German disconnect between the holder of knowledge regarding the format and the holder of the rights which allow for its exploitation. The presentation by Professor Martin Kretschmer (University of Glasgow CREATe) and Dr Sukhpreet Singh (University of Glasgow CREATe) gave a deep insight into market based protection strategies in use using formalization and transaction of know-how, managing the format brand, and, using industry conventions and distribution dynamics. Their main argument was that copyright law is only notionally needed for format protection and that the industry has created market based strategies in the negative space left by the absence of copyright protection.
Despite the prominence of non-legal routes of protection, Christoph Fey (Attorney at Law at Unverzagt Von Have Law Firm Germany) raised the interesting point in his presentation that many of the identified mechanisms, while not reliant directly on legal rights, nonetheless take place in the shadow of the law in so far as the potential for litigation encourages parties to resolve their differences even where it is not invoked. His presentation offered an insight into practice that proved a valuable consideration for further discussion in the room.
The presentation from Prof. Albert Moran (Griffith University Australia) – on the two configurations of screen franchising – contributed his perspective on format trading to the discussion, and picked up on a theme that ran across several talks in his exploration of the ‘intertext’: the ecosystem that successful TV formats can create of products and interactions across a range of medium. Moran’s presentation linked neatly with the engaging series of presentations in its first session on format production. Prof. Andrea Esser (Roehamption University) offered an in-depth look at the branding empires that surrounds many formats, whilst Prof. Klaus-Dieter Altmeppen (The Catholic University of Eichstätt Germany) touched upon the nuances of social practices that influence their creation and circulation while Dr. Claudio Coletta (University of Trento Italy) gave a thought provoking talk on originality and imitation. A welcome contrast between old and new was also provided by the talks of Prof. Jean Chalaby (City University UK) – outlining the historical forces at play in the format market. Finally, Philip Werner (UFA Fremantlemedia), offered his industry experience working with format creators in the still relatively new and upcoming online platforms such as YouTube.
Finally the last of the three sessions explored the lessons than can be learned from a comparative look at the international format markets. For this Prof. Jessica Silbey (Suffolk University, Boston USA) drew upon her work in the U.S. to argue that there exists a strong disconnect between the legal intellectual property framework and its use in practice – a concept she referred to as ‘leaky-IP’. Her work bridged the previous session on format protection by highlighting the industry tolerance in practice for some degree of IP infringement as the under-enforcement of formal rights. In this regard it supported the previous findings that IP enforcement was not a frequently used protective method in the format trade.
The intricacies of the German approach to format rights were subsequently outlined by Oliver Casendyk (Brehm and Moers Law Firm Germany) who put forth a strong argument that the lack of clarity regarding what is protected with regards to formats is beneficial in practice. His argument, which was persuasive, focused on the space provided by the lack of clarity which enabled production companies to retain some influence over subsequent productions even in the German legal environment where all rights are transferred to the broadcaster.
The final pair of talks, which saw Dr Sukhpreet Singh (University of Glasgow) take to the floor again to close after a talk by Prof. Lothar Mikos (University of Film and Television – HFF Potsdam Germany), examined the challenges of format localisation. The pair of talks balanced a more in depth look at a single format by Lothar with Sukhpreet’s overview across four popular and well known formats and gave a refreshingly focused end to a comprehensive and deep schedule.
Overall the workshop was very well organised and provided for a fascinating melting pot of different ideas and opinions from a range of perspectives.