China: Programming Models & Copyright Q&A

Last Updated: 11 April 2017
Article by Watson & Band Law Offices

What is a programming model?

From a legal perspective, the key to the question of whether a programming model can be copyrighted is whether it is protected under China's Copyright Law, which in turn boils down to a fundamental question: is a programming model an idea or the expression of an idea? By definition, a programming model (or a programming format) refers to the method by which a program is presented, the division of labor between the host and guests, the arrangement of cameras, special effects in post-production, and other arrangements of programming elements. Although it involves the fruits of labor by television staff, at least one way that a program can be developed does not constitute a "work" as defined by the Copyright Law. Take Go Fighting!, a TV reality show, as an example. In short, the program can be summarized as "six men leading a team to complete impossible missions." Apparently, the form of this entertainment program does not fall within the scope of protection of the Copyright Law, since it is merely an abstract idea in the minds of the producers.

The relationship between programming models and copyrights

A programming model is not inherently protected by copyright. The importer of a program values not only the complete method of production of the original program, but also related commercial information including planning and operations. In other words, the purchase agreement will include creative concepts related to the program copyright as well as every stage from the birth of the programming and its official launch. Furthermore, once the importer has obtained a license for the original program, it may start advertising that it is the sequel of the original work. This not only eliminates potential legal risks but also increases the popularity of the advertising for the program.

Among examples of the purchase of programming copyrights, one of the earliest and most successful cases is Dragon TV and its purchase of Britain's Got Talent. Since then, there has been a boom in the trading of programming copyrights as China's awareness of IPR protection increases.

Are programming models legally protected?

Although protection for programing models is unavailable under the Copyright Law, a program may still enjoy legal safeguards protecting its mode of production. Based on current judicial trends, there is a possibility of protection under the Anti-Unfair Competition Law for a creative work with high commercial value that has been researched and developed with the support of large labor and capital resources, even if the Copyright Law does not apply. In a Watson & Band case concerning the video game Hearth Stone, the court ultimately invoked the Unfair Competition Law and supported the enforcement action protecting the game rules, even though games rules cannot be protected under the Copyright Law. The programming mode, rather than the model and setup of the programming content, is more like a set of rules of production. From this angle, the Anti-Unfair Competition Law offers a convincing tool to protect the IPR of a programming mode.

(Source: Off the Air? Suspended? Where Has 'Go Fighting!' Gone? By Yu Mengfei)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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