24-07-06

What is "Content" in a TV Show? New guidance for defining "content" and "similarity" has emerged from a case involving a dispute over rights to TV shows. In Universal Studios International BV v Flextech Rights Ltd [2006] EWCA Civ 1036, the Court of Appeal examined various issues in relation to an agreement for exclusive UK broadcast rights to two US programmes. Universal licensed to Flextech the rights to "The Jerry Springer Show" and "Maury Povich", each of which Flextech had already broadcast for several seasons under one-year licences. When complaints to the ITC began causing problems in the later series, Flextech claimed that the contents of the "Jerry Springer" programme had significantly changed over the years - in breach of their agreement that the programme would remain substantially similar in form. Whilst upholding some aspects of the lower court's ruling (and rejecting others), the Court of Appeal considered the meaning of the phrase "similar in content" (which was undefined in the agreement) in respect of a TV show. The court made several assertions of relevance to the TV industry and copyright in general, including: "the word 'content' in relation to an episode of a TV series, book, film or magazine article, naturally means everything that is in it, including the format, the nature and detail of the subject-matter, the manner of presentation (e.g. prepared or impromptu, judgmental or dispassionate, academic or vulgar), the degree and nature of contribution by, and interaction between, presenter, participants, and audience, the language used (sophisticated or basic, foul or polite, etc)." The court further observed that "it would, of course, be wrong to assume that each such factor is of equal weight when assessing similarity" and confirmed that "similarity of content is a question of fact". Reassuringly, the court also held that the actual "content" of a TV show can only be appreciated from actually viewing it. Creators of TV shows, and other authors, can again see (as in the recent Da Vinci case) that, when comparing copyright works, the courts are inclined to look for "substantial similarity" to the original work in both its individual elements and in its "totality".
Article by Tom Frederikse