Exploitation

Exploitation of Formats:

Preliminary investigation through trade journals and interviews with formats industry representatives (in 3 key television industry trade fairs NATPE Las Vegas, DISCOP Budapest and ATF Singapore) indicate that the legal uncertainty concerning protection of formats has lead to the development of non-legal strategies and commercially oriented protection mechanisms to foster formats trade. During the consultations for the specially commissioned Gower’s Review of Intellectual Property in the UK (Gowers, 2006), one of the largest format makers of UK – the BBC – refused to suggest any furtherance of legal remedies to protect formats from copycatting. Its response that “current laws provide adequate protection” and “a more prescriptive approach will create difficulties” effectively illustrates that solutions other than legal ones are being favoured by the industry to protect and exploit formats internationally.

Hear the lead researcher of this project Sukhpreet Singh talk about the impetus to undertake this project. He talks of a number of commercial strategies which may be behind the growth of TV format rights despite the lack of specific legal protection.

Genesis of the Research

At the same time, alternative dispute resolution mechanisms such as ‘mediation’ have also emerged as strategies to create a dialogue between format originators and format copycats. FRAPA (Format Recognition and Protection Association http://www.frapa.org/), for example, is an organization which on one hand calls for a legal protection mechanism, but has already put in place an elementary format registry and has successfully provided mediation services for some high profile format rights disputes (FRAPA, 2008).

International media trade fairs have also helped to establish elaborate protocols of format trading. Moran and Keane (2004, pg. 198) in their definitive study of TV formats in Asian countries suggest that there is a growing recognition of the protocols of format exchange between format creators in spite of the fact that bigger and highly fragmented TV markets provide more chances of format copycatting. This change, according to them, is because of a mix of factors such as better access to original formats from around the world, widespread condemnation of copying practices and industry vigilance.

In order to look at the exploitation and non-legal strategies in a systematic manner, the researchers reviewed a wide variety of academic literature (some of which is given below). Details may be sought from the research team. This review informed the protocol used to conduct exploratory interviews at the three international trade fairs (NATPE Las Vegas, DISCOP Budapest and ATF Singapore).

Highlights of Academic Literature Reviewed

  • Trade fairs establish identities of participants, instruct them in the business culture, & foster common-sense assumptions about how the industry functions (Penaloza 2001); trade fairs differentiate similar products and provide a terrain for producer’s corporate brand identity (Havens 2003); Buyers at trade fairs act as cultural gatekeepers actually responsible for appraising and acquiring programming (Harrington & Bielby 2005).

  • Viewer dissonance for the channel brand can affect the reception of the programme and vice versa (Singh 2004, Drinkwater & Uncles 2007); Relationship of consumer and brand strengthens as it moves through generic, expected, augmented and potential levels (De Chernatony & Macdonald 2003); Consumers visualize brand image as consisting of a hierarchy of attributes, benefits and values (Davis, S. in Kotler 2003).

  • Advertisements, trade-press reviews, in-person sales calls to buyers, and B2B programme merchandising gains visibility in a broadcaster’s premises and the minds of the programme buyers (Havens 2003); These strategies help distributors to inform buyers about forthcoming shows, provide information on shows already achieving high ratings for other broadcasters or territories & reinforce the decisions of existing buyers (Eastman, et al. 2002); Corporate branding helps to maintain credibility of product differentiation in the face of imitation and homogenization of products and services (Hatch & Schultz 2003).

  • The reputation of the production company (as well as that of the director or writer) can make or break a deal with programme buyers though these generally fail to travel through to the actual intended viewership (Harrington & Bielby 2005).

  • Social norms may provide an alternative source of incentives which induce and reward producers of cultural goods in the absence of formal copyright protection. A strong implicit norms-based IP system exists amongst French chefs to protect of haute cuisine recipes (Fauchart & Von Hippel 2007). Trust, respect and access control to different levels of magic guilds and associations prevents the leakage of magic to outsiders (Loshin 2007). Stand-up comedians, in the absence of legal protection, order their industry under a set of IP norms which punishes copying while increasing investments in the creation of original material - something not available before creation of such norms (Oliar & Sprigman 2008; Decherney 2009).

  • Branding creates consumer inertia – barrier to change consuming habits (Reizbos, 2003); Brand innovator gives copycats a moving target and remains ahead of the competition (Kapferer 1998); International coalitions increased the marketability of a programme internationally as the foreign partner understands the programme’s attributes desired by its own domestic audience (Hoskins & McFadyen 1990).

  • In marketing popular culture, an emergent strategy needs to be used as the product is not entirely under the control of the producer; rather it is the audience which makes it popular (Bjorkegren, 1996); the Blair Witch Project – entralled users and simultaneously spurred curiosity (Klien and Masiclat, 2002).

  • Most firms operating in cultural industries seek not only economies of scale but of scope, hence successful firms have to keep diversifying their portfolio rapidly into risky territories (Towse, 2003, Acheson, 2003).

Non-legal Strategies of Format Rights Exploitation and Protection

The results from the exploratory interviews conducted at the three international trade fairs (mentioned above) were specified by a 5 weeks business fellow placement of the lead researcher within Fremantlemedia (one of the largest formats producers of the world) trying to get an in-depth experience of formats trading. This placement provided evidence on long term format protection strategies for business development in markets around the world for three key formats of the company - Idols, Got Talent and Hole in the Wall.

In this section, the reader finds a short write-up of exploitation and protection strategies identified, as well as video material illustrating some of the strategies. Also mentioned are quotes in italics collected from interviews conducted at the various trade fairs that the lead researcher attended (see methodology section for details).

Large format producers depend on enhanced information flow to detect format copycatting as well as know about new and exciting formats which they wish to buy. This is achieved using a network of spotters (or information providers) around key territories around the world.

“We have a good spotter’s network in the big format creating countries of the world - US, Holland, Australia, Scandinavia - which we use to buy new shows but they also feed us things about what is being developed.” [EVP, Distribution, Major Format Developer]

“The spotter's network is so secretive that I only know the names of the spotters. They work as freelance production executives who channelize things they hear to me and the aim of it is about getting the knowledge of promising shows coming through from our competitors rather than trying to spot rip offs.” [EVP, Distribution, Major Format Developer]

The formats industry uses non-legal and commercial means to solve format rights disputes as far as possible. They rarely seem to depend on a bundling of tradable intellectual property rights (such as trade marks and copyright) as evidenced below.

“Relationships and trust are very important in the formats business. Gentlemen’s agreements are still the corner stone of most global television business where most large companies observe other people’s IP.” [SVP, Content Partnerships, Major Format Developer]

“There is also a degree of taint around about very obviously ripping off someone else’s show. There is a degree of honour and trust within the industry – with some notable exceptions – generally speaking it’s seen as something slightly shameful to be very obviously ripping off somebody else’s show.” [EVP, Distribution, Major Format Developer]

Patterns leading to Strategies (click to see video)

Deterrent Letters
Speed to the Market and Enhanced Distribution Networks
Production Know-How (Format Bibles) and Production Quality
Flying Producers System
Stimulating Demand with Taped Versions
Power Relations & Clout
Role of Trade Fairs
Cultural Localization and Territory Adaptations
Formats Brand Management

Model of TV Formats Exploitation and Protection