Legal Analysis on Program Format Protection

By Luo Yanjie

China’s Got Talent broadcasted on Dragon TV has seen its 4^th season this year, and during the past couple years, the show has been one of the most popular interactive reality TV shows in China. The main reason contributing to the show’s success is its high production level and the claimed license from British copyright owner which makes the program the true Talent like its British and American equivalents. However, in fact, Dragon TV’s statement is not legally accurate by China Copyright Law for the show is kind of transfer of the British program format. Today, the essay will tell you shall the program format be protected by law and what kind protection it is.

I. The overall program format may not be protected by China Copyright Law

It’s the WORKS could be protected by China Copyright Law, and the law also makes a detailed classification on the WORKS, but no sort of program format could be found. Furthermore, by the litigation purpose of the China Copyright Law, the legal protection only covers the “content” rather than the “idea” or the “originality”, that does not mean a unfair protection for the lawmaker’s effort to avoid the monopoly on “originality”. And the so called program format is actually kind of originality with no content on itself, and hereby it could not be the protective object on Copyright Law.

For no doubt, the independent music or the picture in background design may enjoy the protection from China Copyright Law; however such a protection has no connection to the program format for those protected are the music works or fine art works in law.

II. The program name may be applied as trademark for the legal protection

As discussed above, the program format could not be protected by China Copyright Law but that does not mean it has no way to be put under legal protection. The most direct way is to register it as a trademark. For China’s Got Talent, the program organizer may register the name as well as the frequently sued marks in it as trademarks, and that could prohibit other producers or television use the identical or similar names in their shows. Also this suggestion could be applied to other international brands used in China.

But it shall also be kept in mind that the protective object on China Trademark Law could only be the mark and the program content, format or originality is not in the trademark protection scope.

III. The Anti-unfair Competition Law may be applied in particular situations

As provided in the Anti-unfair Competition Law,

“using, without authorization, the name, packaging or decoration peculiar to well-known goods or using a name, packaging or decoration similar to that of well-known goods, so that his goods are confused with the well-known goods of another person, causing buyers to mistake them for the well-known goods of the other person;”

could constitute the unfair competition and shall take the tort liability accordingly.

Despite the program could not be listed in normal products, I still prefer to apply the regulation. Supposing Dragon TV has gained no copyright license (by the way I would like to regard it as a brand license) from the British copyright owner, the broadcast of the show on Dragon TV will no doubt be unfair competition conducts for the Chinese show shares the same background setting and program format with the British show and that may confuse the audiences of any possible link between the show or misunderstand the show on Dragon TV the Chinese version of Britain’s Got Talent. (Considering the communication on Internet, Britain’s Got Talent is still reputed in China though it has ever been broadcasted on local televisions. Once the Chinese show intends to be confused with the British show, it constitutes a unfair competition conduct)

But the standard to judge the misunderstanding among programs in China Anti-unfair Competition Law is high. On behalf of the ordinary shows, it’s less likely to be judged a misunderstanding. So far we have seen the quarrel between Hunan TV’s Take Me Out and Jiangsu TV’s If You Are The One in the State Administration of Radio, Film and Television. Both the shows are dating program, and Hunan TV claimed a plagiarism by Jiangsu TV. In our opinions, both shows only resemble each other in themes and format, and share no common points otherwise. As the afore analysis, with the aim to prevent theme monopoly, no law will protect the theme only. And for this reason, we could still see the co-existence of the shows and no administrative adjudication has been made on the dispute, and also Hunan TV is less likely to bring it to the court.

In a word, the program format is could not be protected by existing laws, and with the regulations of Trademark Law and Anti-unfair Competition Law, the program names, marks and other elements easy to be misunderstood could be protected. Also I hold a positive attitude to the current litigation for the law could not suppress other’s originality. For the works created on other’s ideas, the law shall not make any prohibition on it.

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