Protection of TV Program Formats in Turkish Law

Regardless of being intellectual creations that are of great importance for the television production sector, program formats lack clear definition within the scope of Turkish law, as well as a broadly accepted assessment of their legal characteristics.

Uğur Çolak, a former member of the Istanbul District Court, defined program formats as “Frameworks or outlines for programs transmitted by any broadcast format, including digital communications, which demonstrate how each episode should be produced and which bear the characteristics of its author and the program itself, such as the name and flow of the program, the position and attitude of the host, the position and manner of participation of at-home and/or studio audience, camera angles, studio designs, catchphrases, slogans and theme music,” in his academic work titled, “Protection of Television Program Formats.”

Although Law No. 5846, On Intellectual and Artistic Works ("FSEK"), and other related legislation does not include a comprehensive definition of formats as the one provided, above, it is argued by the established case-law, and by the dominant view amongst legal scholars, that program formats which are fixed, in writing, should be deemed as intellectual works under the FSEK. In this regard, it is accepted that program formats that bear the characteristics of their authors (“originality/uniqueness”) should be protected as intellectual works under the FSEK, provided that they are fixed in a tangible medium (“fixation”) in a manner that reflects such authorship.

On the other hand, there are some doctrinal views arguing that TV formats may not be protected under the FSEK as they do not fall under any of the four numerus clausus categories, conclusively stipulated by the said law. The opposing view asserts that program formats, indeed, fall under the category of literary and scientific works by virtue of FSEK Article 2/b.1, which defines such works as, “works that are expressed by language and writing in any form…”

In line with the above, the 11th Civil Chamber of the Supreme Court, in its decision numbered 2004/6612 E., 2005/3278 K. and dated April 5, 2005, held that "According to Article 5 of the Law concerning Intellectual and Artistic Works, numbered 5846, as amended through Law numbered 4630, it must be accepted that program broadcast formats must be deemed as works and protected as such under the said law. In this regard, our Chamber has assessed program formats within the scope of the aforesaid law in its decisions numbered 2000/6049-8439 and 2004/1281-10333,” clearly showing that television formats also enjoy the protection same granted to the works under the FSEK.

Similarly, the 11th Civil Chamber of the Supreme Court, in its decision dated September 21, 2004 and numbered 2003/12452 E., 2004/8678 K, upheld the decision of the Court of First Instance, which had held that the game show titled "Kim Gitsin?" infringed upon the rights of the copyright holder/author of the TV program entitled “Weakest Link” (the Turkish version of which was broadcast with the title “En Zayıf Halka”), since the former was produced with the same format, content and rules as the latter foreign-originated program, which was deemed to be an original work.

In another case, the Istanbul 1st Civil Court for Intellectual and Industrial Rights, with its decision dated April 29, 2003 and numbered 2001/1123-2003/202, held that the contest, which was broadcast on the "Show TV" channel, was an imitation of the "2008 SMS" program, originally broadcast in Italy, and where the right to use it, in Turkey, was granted to the plaintiff in accordance with license contracts and, therefore, constituted an infringement of the rights of the plaintiff.

It is also accepted among legal scholars that TV formats may be afforded protection as per the general unfair competition provisions under the Turkish Commercial Code (“TTK”) in any case, even if it is not possible to consider formats as scientific and literary works.

Accordingly, in the unpublished decision of the Istanbul 1st Civil Court for Intellectual and Industrial Rights, numbered E. 2003/239, K. 2007/152, it is held that: “…If the television format is not an imitation and is original, that is, if it contains very concrete original details beyond an abstract concept; if it is unique, and has a certain philosophy and atmosphere, it is accepted that it will be protected as an intellectual work; whereas, if it is not original, it may be protected under provisions of parasitic or unfair competition, provided that the relevant conditions are fulfilled.

In light of the abovementioned doctrinal views and legal precedents, it is understood that (i) original TV formats that satisfy the requirement of (ii) fixation are entitled to protection under the FSEK provisions as (iii) intellectual works; whereas, formats that do not meet such conditions may be protected under the unfair competition provisions of the TTK.

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