In view of the recent Judgements issued by the Commercial Courts no. 12 and no. 8 of Madrid, we hereby analyse the most important aspects, considered by the Spanish Judges to protect the TV/Radio format program pursuant to the Intellectual Property Act 1/1996.
In the first place, we shall focus on the TV show formats, and more specifically, the case dealt by the Commercial Court no. 12 of Madrid. The Spanish Public National Television (TVE as per its Spanish acronyms) brought a lawsuit against TELECINCO (private TV channel) for the emission of the TV show “Spain asks, Belen answers”. TVE considered that the Private channel had infringed it´s intellectual property rights by plagiarizing his own Show “I have a question for you” which was based on a special format consisting on a randomly selected public who makes questions arbitrarily to a special guest (usually a popular politician). TVE alleged that it’s TV show had to be protected by virtue of Article 10 of the Intellectual Property Act.
The Court clarifies in the first place that any TV format related to a specific script or story line is subject to be protected. The key is to give some material expression to the idea with a specific hard copy or hardware. We are referring specifically to the so named “Production Bible” or “Format Bible” which contains the main details to develop the TV show, namely; format, spectator’s location at the set, entry of the guest, etc.
In this case, the Commercial Court no 12 of Madrid under the Article 10 of the Intellectual Property Act, ruled in favour of TVE, due to the following: Firstly, TVE bought the TV Right’s to a foreign production company (French channel- TF1) and secondly, it counts with its own “Production Bible”.
On the other hand, TELECINCO replied arguing the lack of originality of the TV show exhibited by TVE. The Court applied the objective conception of originality pursuant to Article 10.1 of the Intellectual Property Act, which focuses on the different impression caused in the audience who watch the TV show. In this specific case, both TV shows have almost the same structure, moderator and format, which is easily identifiable by the TV show audience, notwithstanding there might be some irrelevant differences between both TV shows.
Additionally, the Judge analysed the different opinions and critics received by TELECINCO from important newspapers which quoted expressions like “similar or with a close resemblance” between the formats. All of these arguments led the Judge to conclude and qualifying the TVE’s TV show format as original and therefore entitled to obtain legal protection.
In conclusion, the Court admits the lawsuit issued against TELECINCO considering the three arguments exposed: The purchase of the emission rights to a French channel, the “Production Bible,” and finally the originality. The Court condemns TELECINCO by virtue of Section 138 of Intellectual Property Act, to stop the broadcasting of the TV Show, to publish the Judgement on Newspapers and liable for compensation for monetary damages and dignitary tort.
Once the arguments taken into account by the Court in order to guarantee the protection of TV Shows have been analysed, we are focusing following on to the Radio format. In this Judgement under discussion issued by the Commercial Court nº 8 of Madrid, we analyse the infringement of the IP rights in regards to a Radio format program, which might derive in the adoption of preventive measures.
In that case, the Court just discuss about the adoption or non adoption of Preventive measures applied by the radio station “Cadena SER”, against the “COPE”, for the radio program “Tiempo de juego” for plagiarism of the radio format of “Carrusel deportivo.” In the first place, the Court excludes the originality requirement and the Intellectual Property protection for programs related to the transmission of news as they have not many differences in terms of imagination and creativity.
In the second place, “Cadena SER” did not have a “Bible Production” which might state the structure and hard copy of the idea.
Finally, even thought “Cadena Ser” did not have a “Bible Production”, the radio program has not maintained from the beginning of the emission the same behaviour or characteristics, but they have always incorporated new changes and performances from time to time as they considered it fit.
In view of the arguments mentioned above, the Court considers precipitous to accept these preventive measures and for such reason, dismisses the claim of “Cadena SER”.
