As stated in the previous issue’s column, the Copyright Law provides important relief measures for variety shows and their rights holders. In practice, courts can provide further effective relief measures for variety shows through intellectual property (IP) causes of action other than Copyright Law. If a rights holder comprehensively considers the various available relief measures and erects in advance a three-dimensional relief (3D) model, it can fully exploit the IP weapons relevant to variety shows to better protect its commercial interests.
‘Copyright’ import contracts
In 2014, all of the most popular variety shows were imported from abroad. The media and programme importers usually term them “genuine imports”, giving people the impression that all that is being imported are the relevant copyrights. However, in practice, there is an innumerable variety of programme imports and co-operation models, making it impossible to subsume them under a single rubric. Their nature can only be determined based on the actual content of the contracts. A so-called “copyright import” contract cannot simply be understood as a copyright transfer or licensing contract, as its nature may also include other IP content, such as trademark, patent or trade secrets licensing. Under the IP framework, only by erecting a 3D relief model addressing the substantive contents of a variety show is it possible to reduce IP losses to the greatest extent and avoid the rapid drop in the socio-economic benefits generated by a variety show as a result of reproduction, imitation, adaptation, etc.
Constructing a relief system
A large portion of the infringements that occur in reality comes from former co-operating partners or from insiders, either unintentionally or intentionally. Sometimes, even before a genuine show has been released on the market, there are already copycat programmes on the scene. As mentioned in the previous column, such concepts as a simple theme or basic idea do not constitute a work, and therefore cannot be protected by copyright.
However, a concept is the soul of a programme, and if disclosed can readily give rise to competing similar programmes, and even if the latter are not substantially similar and do not constitute infringement under Copyright Law, the audience may lose the sense of freshness, thereby seriously impacting the commercial value of the variety show. Under such a circumstance, using a contract to duly take relief precautions early on is recommended, specifying that the other party to the contract may not disclose relevant content to third parties, may not engage in certain acts, etc., and clearly defining the attendant liability for breach of contract.
A court only needs to review the contractual obligations, and is not required to determine whether the subject matter constitutes an IP subject. So long as the party breaches the contract, it can be found to be in breach of contract and be required to bear the attendant liability. Furthermore, some programme content does not constitute trade secrets and thus cannot be protected as trade secrets, but protecting the same by contract is easy and practicable. However, it should be noted that if protection is done by way of contract, the adducement of evidence in respect of a leakage of confidential information can be difficult. The scope of persons in the know should be strictly limited by a contract for confidentiality purposes. Additionally, when drafting the terms, the wording should be chosen judiciously to minimise probative difficulties.
The basic function of trademarks is to distinguish the sources of goods and services. For a variety show, as a cultural product, once its name becomes a sign that identifies the source of a good or service for the relevant public, it has the fundamental attribute of a trademark (e.g. Happy Camp and The Voice of China already have the effect of distinguishing the source of a service). No other may use, without a licence, such programme name that has become a trademark to tag its own variety show. A programme producer may register its programme name and related production services as trademarks.
Furthermore, the value created by the derivative products, e.g. games, animated films, theme parks, etc., of cultural products is often greater than that of the programme itself. Accordingly, the registration of trademarks in these fields will be of major significance to the comprehensive development of the variety programme. Although the Trademark Law provides a certain degree of protection for unregistered trademarks, there are significant difficulties in collecting and determining evidence relating to the commencement of use of an unregistered trademark, the period of continuous use, the extent to which the public is familiar with it, the extent of publicity for it and its geographical scope. Based on the authors’ practice experience, commencing trademark registration in relevant fields at the earliest instance is extremely advantageous in reducing the difficulty of protecting rights subsequently.
Generally speaking, in seeking a certain programme effect, the programme producer may design proprietary props, etc. If the design features of such props are distinctively different from existing designs or existing design combinations, an application may be filed in advance for a design patent for the design. If, subsequently, an imitator also uses props of similar design, a legal action may be instituted and such relief measures as demanding cessation of the infringement may be applied to effectively put a halt to the imitator’s commercial act.
Unfair competition law
The Anti-unfair Competition Law can provide supplementary protection where the foregoing legal measures fail to give effective protection. Passing off disputes, false publicity disputes, etc., are relatively difficult to guard against, requiring reliance on after-the-fact relief. At the variety show creation stage, confidentiality measures should be taken in respect of information that can generate economic benefits, such as the themes, plotting, outline, script, etc., failing which it is impossible to seek relief on the grounds of trade secrets infringement.
To date there are no provisions in Chinese laws that specifically address variety shows, but a rights holder can, nonetheless, construct a dedicated 3D and multi-faceted relief system based on the current legal framework and the specific circumstances of each variety show, thereby protecting the producer’s first-mover advantages to the greatest extent possible and safeguarding its commercial interests.
Wang Yadong is the executive partner and Han Yufeng is an IP Counsel at Run Ming Law Office
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