Turkey has exported TV content for USD 350 million in 2017 becoming the second largest drama exporter in the world, after USA, and expecting to sell around USD 1 billion by 2023; this, because it has entered other content genres, in addition to drama, especially entertainment formats. 1
It has long been a matter of debate in Turkey whether TV program formats would enjoy copyright protection under the Law on Intellectual and Artistic Works No. 5846 (Copyright Act.)
There is no doubt that TV formats are an important source of revenue in the entertainment industry. In fact, many TV broadcasts are composed of shows that are mainly shaped on specific formats some of which are imported and adapted to the culture of the importing country. At this point, it is important to determine the legal quality of TV formats in terms of the limits of legal protection to be granted to them.
Although a TV format shall undoubtedly enjoy a copyright protection 2, in order for an intellectual property to be protected as a piece of work in accordance with Copyright Act, it must bear the characteristic of its author and be classified under one of the limited number of work types specified in the law.
As is known, according to Article 1/B of Copyright Act, 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 requires the copyright protection to a work which falls within the four work types mentioned in Article however this is not sufficient since the same article requires the same work to bear author's characteristic in order to enjoy a copyright protection. Pursuant to Article 9(2) TRIPS, what is protected in the copyright law is not the idea itself, but the fact that the intellectual property formed thereby has taken a characteristically comprehensible form which does not necessarily have to be shaped on an object. The key aspect is that it has to be perceptible and comprehensible. 3
At this point, the way TV formats are preserved as work can only be explained by clarifying what format is.4 In the doctrine, some authors define the concept of format as "a general description"5 or as a framework plan or draft bearing the characteristics of the author. Yet, some other authors suggest that format constitutes the backbone of a TV show, as a detailed draft that specifies its structure, content, subject, shooting technique and set design.6
According to another opinion, formats should be protected by unfair competition provisions as per the Code of Commerce rather than copyright law, because they involve the transfer of abstract thoughts.7 However, another opinion to which we agree as well specifies that format is essentially an intellectual product which has unchanging characteristic elements such as name, content, structure, unfolding of the plot in a certain composition, set design and host, whereas the content consists of elements that may change every time.8
In fact, Joris Van Manen identifies the TV formats as bread crust: the crust remains the same, but the content may change every time, depending on the show on which the format is based.9
The characteristic elements of format are the fixed elements which shall not change every time, such as the name of the show, target audience, time, and structure, detailing of content, and set design.10 At this point, in our opinion, it is the structure of the show that serves to determine the characteristic of the author in the format, that is to say, the composition, content, and the host of the show.
In order for such an intellectual product to be protected, it must bear the characteristics of its author. Precisely at this point, it is a matter of debate in the doctrine as to what the meaning and extent is for a TV format to bear the characteristics of its author. For example, according to some authors, a format must be unique11 and go beyond the ordinary in order to be considered as work, even if it has been formed as a result of intellectual creation and effort. An elaborated text that fulfils these conditions shall be protected as a scientific and literary work if it bears the characteristics of its author. 12
In a decision dated 2008, the 11th Civil Chamber of the Supreme Court of Appeals assessed TV formats as works similar to cinematographic works and ruled that TV formats would be protected within the scope of Copyright Act in reference to previous decisions of the Supreme Court of Appeals. 13 In a judgment made in 2016, it was ruled that 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.
Again, in a dispute dated 2016, it was 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" therefore it was actually implied that formats which bear characteristics and can go beyond abstract explanations of ideas would be protected as copyright work.14 Also, in a very recent judgment, it was indicated that formats which do not bear any characteristics shall not be protected, restating the characteristics rule valid for TV formats. 15
To sum up, in the view of the doctrine and the Supreme Court case law TV formats shall enjoy protection under Copyright Act, provided that they bear the characteristics of their authors and are particularly detailed.
1 https://www.prensario.tv/novedades/1962-turkey-a-booming-industry-eyeing-for-its-future, Date of Access: 10.02.2019
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], V.4, issue: 2004/3, p.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, V.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], p. 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, p. 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) (recited from 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 No. E. 2015/7276, K. 2016/3447 dated 29.3.2016 acknowledges that format is protected as a scientific and literary work within the meaning of Article 2 Copyright Act. The related section of the decision reads: "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, behavior 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...)
". (Date of Access: 24.12.2018)
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