Introduction

Turkey exported TV content worth $350 million in 2017, becoming the second largest exporter of TV drama in the world after the United States and is expected to sell approximately $1 billion worth of TV content by 2023, including entertainment formats.(1)

However, the question of whether TV formats enjoy copyright protection under the Law on Intellectual and Artistic Works 5846 (the Copyright Act) has long been debated in Turkey.

TV formats are undoubtedly an important source of revenue in the entertainment industry. In fact, many TV broadcasts are composed of shows based on specific formats, some of which are imported and adapted to the importing country's culture. In this context, it is important to determine the legal status of TV formats in terms of the limits of legal protection granted to them.

IP protection under Copyright Act

Although TV formats undoubtedly enjoy copyright protection,(2) in order for intellectual property to be protected as a piece of work in accordance with the Copyright Act, it must bear the characteristics of its author and be classified under one of the limited number of work types specified under the law.

According to Article 1/B of the Copyright Act a 'work' "means any intellectual or artistic product bearing the characteristic of its author, which is deemed as a scientific and literary or musical work or work of fine arts or cinematographic work". Article 1/B provides copyright protection to any work that falls within the categories listed above. However, the same article also requires that such work bears its authors' characteristics in order to enjoy copyright protection. Pursuant to Article 9(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, "copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such". The key aspect is that what is protected must be perceptible and comprehensible.(3)

Whether TV formats are afforded copyright protection depends on the particular format.(4) Some legal authors define a 'format' as "a general description"(5) or a framework plan or draft bearing the author's characteristics. However, other authors suggest that a format constitutes the backbone of a TV programme (eg, a detailed draft outline that specifies its structure, content, subject, shooting technique and set design).(6)

According to other opinions, TV formats should be protected by unfair competition provisions under the Code of Commerce rather than by copyright law because they involve the transfer of abstract thoughts.(7) However, a contrasting opinion specifies that TV formats are essentially intellectual products which have unchanging characteristic elements such as names, content, structure, plot, set design and hosts, whereas content consists of elements that may change constantly.(8)

Joris Van Manen has described TV formats as similar to bread crusts – the crust remains the same, but the content may change depending on the programme on which the format is based.(9)

The characteristic elements of TV formats are the fixed elements which stay the same, such as the name of the show, target audience, length, structure, content and set design.(10) Arguably, a TV programme's structure serves to determine whether it bears the characteristics of its author (ie, a programme's composition, content and host).

In order for the IP rights of such an artistic product to be protected, it must bear the characteristics of its author. There is much debate regarding how and to what extent a TV format can bear said characteristics. For example, according to some legal authors, a format must be unique(11) in order to be considered a 'work' under Article 1/B of the Copyright Act, even if it is the result of intellectual creativity and effort. An elaborated text that fulfils these conditions will be protected as a scientific and literary work if it bears the characteristics of its author.(12)

Case law

In a 2008 decision, the 11th Civil Chamber of the Supreme Court of Appeals examined whether TV formats could be considered similar to cinematographic works and ruled that TV formats should be protected within the scope of the Copyright Act, with reference to previous Supreme Court of Appeals decisions.(13) Further, in a 2016 judgment, the Supreme Court of Appeals found as follows:

A TV format elaborated on a text that explains almost every detail including the positions of the host and the contestant during the show, the specific wording to be used while announcing commercial breaks, camera lights and shooting techniques shall be protected as a scientific and literary work within the meaning of Article 2 of Copyright Act.

In another dispute from 2016 the Supreme Court stated that "a format which does not include a detailed description shall not enjoy copyright protection since it does not reflect the characteristics of its author", which implies that formats which bear characteristics and go beyond abstract explanations of ideas are protected as copyrighted work.(14) Further, a recent Supreme Court of Appeals judgment indicated that TV formats which bear no distinct characteristics are not protected, restating the characteristics rule for TV formats.(15)

Comment

In the view of legal doctrine and Supreme Court of Appeals case law, TV formats enjoy protection under the Copyright Act provided that they bear the characteristics of their authors and are particularly detailed.

For further information on this topic please contact Sila Basaran at Deris Attorney At Law Partnership by telephone (+90 212 252 6122) or email (sila.basaran@deris.com). The Deris Attorney At Law Partnership website can be accessed at www.deris.com.tr.

Endnotes

(1) See "Turkey: a booming industry eyeing for its future".

(2) Ates, Mustafa; Fikri Hukukta Eser [Work in Intellectual Law], Ankara, 2007, p 281; Çolak, Ugur; Televizyon Program Formatlarinin Korunmasi [Protection of TV Formats], Fikri Mülkiyet ve Rekabet Hukuku Dergisi ("FMR") [Journal of Intellectual Property and Competition Law], Volume 4, Issue 2004/3, pp 13-33.

(3) Karabag, Tugçe; Televizyon Programlari ve Televizyon Program Formatlari [TV Shows and TV Show Formats], Ankara, 2017, p 55.

(4) Ates, Mustafa; Fikri Hukukta Eser [Work in Intellectual Law], Ankara, 2007, p 281.

(5) Ates, Fikri Hukukta Eser [Work in Intellectual Law], p 281; Çolak, Televizyon Program Formatlarinin Korunmasi [Protection of TV Formats], FMR, Volume 4, Issue 2004/3, p 24.

(6) Karabag; Televizyon Programlari ve Televizyon Program Formatlari [TV Shows and TV Show Formats], p 50.

(7) Çolak, Televizyon Program Formatlarinin Korunmasi [Protection of TV Formats], pp 13-23; Yasaman, Hamdi; Fikri ve Sinai Mülkiyet Hukuku, Fikir ve Sanat Eserleri Endüstriyel Tasarimlar, Patentler ile ilgili Makaleler, Hukuki Mütalaalar, Bilirkisi Raporlari [Intellectual and Industrial Property Law, Intellectual and Artistic Works Articles Related to Industrial Designs, Patents, Legal Opinions, Expert Reports], Istanbul, 2012, pp 342-349.

(8) Karabag, Televizyon Programlari ve Televizyon Program Formatlari [TV Shows and TV Show Formats], p 50.

(9) Format Recognition and Protection Association (FRAPA); Format Protection in Germany, France and Great Britain, Summary of the Study, ''Economic and Legal Aspects of International Development and Marketing of TV Formats'', Cologne, 2003, (Frapa Report) cited in Karabag, p 49.

(10) Tosun, Yalçin; Sinema Eserleri ve Eser Sahibinin Haklari [Cinematographic Works and Rights of Authors], Istanbul, 2009, p 173.

(11) Arikan, p 77.

(12) Ates, Fikri Hukukta Eser [Work in Intellectual Law], p 283. Thus, the decision of the 11th Civil Department of the Supreme Court of Appeals E. 2015/7276, K 2016/3447 dated 29 March 2016 acknowledges that format is protected as a scientific and literary work within the meaning of Article 2 of the Copyright Act. The related section of the decision states:

The text describing the format which consists of 249 pages thoroughly specifies the structure of the TV contest show from the beginning to the end, sets its framework and explains every detail including the positions of the host and the contestant during the show, the specific wording to be used while announcing commercial breaks, camera lights, shooting techniques, location of the audience, host and contestants, number of questions, awards, behaviour of the host, internet and… connections, display of questions on the screen and the colors used, thus the text of 249 pages about the TV format which the plaintiff takes as the basis, is a scientific and literary work within the meaning of Article 2).

(13) Decision of the 11th Civil Department of the Supreme Court of Appeals, E. 2008/5996, K 2008/12126, dated 3 November 2008.

(14) Decision of the 11th Civil Department of the Supreme Court of Appeals, E 2015/10650, K 2016/5199, dated 9 May 2016.

(15) Decision of the 11th Civil Department of the Supreme Court of Appeals, E 2016/13735, K 2018/4656, dated 20 June 2018.

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